fss20151211agreement







1 (43)                           SHARE SALE AND PURCHASE AGREEMENT   by and between   FEDERAL SIGNAL CORPORATION,      FEDERAL SIGNAL OF EUROPE B.V.      and      MORITA HOLDINGS CORPORATION      regarding the shares in      BRONTO SKYLIFT OY AB, BRONTO SKYLIFT, INC. and BRONTON   KIINTEISTÖT KY         December 11, 2015         





 







2 (43)      CONTENTS       SCHEDULES ............................................................................................................................................................ 4   PARTIES ................................................................................................................................................................... 5   BACKGROUND ........................................................................................................................................................ 5   1 DEFINITIONS .................................................................................................................................................. 5   2 SALE AND PURCHASE OF THE SHARES ................................................................................................... 12   2.1 Object of Sale ........................................................................................................................................ 12   2.2 Transfer of title ..................................................................................................................................... 12   3 PURCHASE PRICE AND PAYMENT ............................................................................................................. 13   3.1 Purchase Price ...................................................................................................................................... 13   3.2 Payment of the Initial Purchase Price ................................................................................................. 13   3.3 Determination and Payment of the Adjustment Amount .................................................................. 13   3.4 Refunds and Payments for Tax and Latvia Litigation ........................................................................ 14   3.5 Transfer Tax and Costs ......................................................................................................................... 16   4 CONDITIONS PRECEDENT TO CLOSING .................................................................................................. 16   4.1 Conditions Precedent to Obligations of All Parties ............................................................................ 16   4.2 Conditions Precedent to Obligations of the Sellers ........................................................................... 18   4.3 Responsibility for Fulfillment ............................................................................................................. 18   5 PRE-CLOSING PERIOD ................................................................................................................................. 19   5.1 Conduct of Business Pending Closing ................................................................................................. 19   5.2 Access to Information and Persons ..................................................................................................... 21   5.3 Notice of Certain Events ...................................................................................................................... 21   5.4 Transfer of Employees to Bronto Skylift, Inc. ..................................................................................... 21   5.5 Obtaining Consents and Providing Notices to Third Parties, and Deregistration ........................... 22   6 CLOSING ........................................................................................................................................................ 22   6.1 Closing Date and Venue ...................................................................................................................... 22   6.2 Deliveries for Closing .......................................................................................................................... 22   7 SELLERS’ REPRESENTATIONS AND WARRANTIES............................................................................... 24   7.1 General ................................................................................................................................................. 24   7.2 Sellers’ Warranties............................................................................................................................... 25   7.2.1 Organization and Existence of Sellers ................................................................................ 25   7.2.2 Power and Authorization of Sellers; Enforceable Agreement; Authority Approvals ...... 25   7.2.3 Title and Authority to Transfer the Shares ........................................................................ 25   7.2.4 Organization and Existence of the Company and the Subsidiaries .................................. 26   7.2.5 Ownership in Subsidiaries and Other Participations ........................................................ 26   7.2.6 Capitalization ....................................................................................................................... 26   7.2.7 Corporate Records and Documentation ............................................................................ 26   7.2.8 Financial Information ......................................................................................................... 27   7.2.9 Personal Property ................................................................................................................ 27   7.2.10 Real Property and Business Premises ................................................................................ 27   7.2.11 Intellectual Property Rights ................................................................................................ 27   7.2.12 Business Products ............................................................................................................... 28   7.2.13 Information Technology ..................................................................................................... 28   7.2.14 Agreements .......................................................................................................................... 28   7.2.15 Related Party Transactions ................................................................................................. 29   7.2.16 Employment Matters and Pensions ................................................................................... 29   7.2.17 Taxes .................................................................................................................................... 30   7.2.18 Environmental Matters; Health and Safety ........................................................................ 31   7.2.19 Insurance .............................................................................................................................. 31   7.2.20 Litigation and Claims ........................................................................................................... 31   7.2.21 Compliance with Laws and Permits ................................................................................... 32   7.2.22 Ordinary Course of Business .............................................................................................. 32   7.2.23 No Brokers ........................................................................................................................... 32   7.2.24 True Disclosure .................................................................................................................... 32   7.2.25 No Other Warranties ........................................................................................................... 32   8 COMPENSATION .......................................................................................................................................... 33   8.1 Compensation by  the Indemnifying Party ........................................................................................ 33   8.2 Limitation of  Indemnifying Party’s Liability .................................................................................... 33   8.2.1 Limitations of Liability ........................................................................................................ 33   8.2.2 Monetary limitations ........................................................................................................... 34     





 







3 (43)      8.2.3 Time limitations .................................................................................................................. 34   8.2.4 Other limitations ................................................................................................................. 34   8.3 Third Party Claims .............................................................................................................................. 35   9 BUYER’S REPRESENTATIONS AND WARRANTIES ................................................................................ 36   9.2 Organization and Existence of Buyer ................................................................................................. 36   9.3 Power and Authorization of Buyer; Enforceable Agreement ............................................................ 36   9.4 Solvency ............................................................................................................................................... 37   9.5 Financing ............................................................................................................................................. 37   9.6 Authority Approvals ............................................................................................................................ 37   9.7 No Breach by the Sellers ..................................................................................................................... 37   10 CERTAIN UNDERTAKINGS ......................................................................................................................... 37   10.1 Post-Closing Items .............................................................................................................................. 37   10.2 Resigning Directors ............................................................................................................................. 38   10.3 Access to Books and Records .............................................................................................................. 38   10.4 Non-Competition ................................................................................................................................. 38   10.5 Non-Solicitation .................................................................................................................................. 38   10.6 Confidentiality and Announcements .................................................................................................. 38   11 TERMINATION ............................................................................................................................................. 39   11.1 Termination ......................................................................................................................................... 39   11.2 Effect of Termination .......................................................................................................................... 40   11.3 Termination after Closing ................................................................................................................... 40   12 MISCELLANEOUS ......................................................................................................................................... 40   12.1 Notices .................................................................................................................................................. 40   12.2 Entire Agreement ................................................................................................................................. 41   12.3 Amendments ......................................................................................................................................... 41   12.4 Assignment ........................................................................................................................................... 41   12.5 Expenses ............................................................................................................................................... 41   12.6 No Waiver ............................................................................................................................................. 41   12.7 Severability ........................................................................................................................................... 41   12.8 Interpretation; Order of Priority ......................................................................................................... 41   13 GOVERNING LAW ........................................................................................................................................ 42   14 DISPUTES ...................................................................................................................................................... 42   15 COUNTERPARTS OF AGREEMENT ........................................................................................................... 42               





 







4 (43)      SCHEDULES    Schedule 3.1.2 Sellers’ Bank Accounts   Schedule 3.1.3 Allocation of Purchase Price   Schedule 3.3.1 Working Capital and Net Debt   Schedule 5.5.1(i) Consents from lenders   Schedule 5.5.1(ii) Parent Company Guarantees   Schedule 5.5.2 Notice Parties   Schedule 6.2.2 (d) Intra-Group Net Indebtedness   Schedule 6.2.2 (g) Principles for Transitional Services Agreement   Schedule 6.2.2(h) Forms of Resignation Letter   Schedule 7.2.4.1 Articles of association, trade register, etc. (Bronto Skylift Oy Ab)   Schedule 7.2.4.2 Articles of association, trade register, etc. (Subsidiaries and Bronto Skylift,   Inc.)      Schedule 7.2.5.1 Ownership in Subsidiaries   Schedule 7.2.5.2 Other participations   Schedule 7.2.8.2 Management Accounts   Schedule 7.2.10.1 Real Property   Schedule 7.2.12.1 Business Products Defects   Schedule 7.2.14.4 Agreements (Consents, Approvals and Notices)   Schedule 7.2.15.1 Related Party Agreements   Schedule 7.2.16.1 Key Employees            





 







5 (43)      THIS SHARE SALE AND PURCHASE AGREEMENT is made on December 11, 2015, among the Par-   ties.      PARTIES   (1) Federal Signal Corporation, a publicly listed company incorporated and   existing under the laws of Delaware, having its registered office in 1415 West   22nd Street, Oak Brook, Illinois, 60523-2004, USA (FS Corporation).   (2) Federal Signal of Europe B.V. (corporate identity number 37061467-   0000), a company incorporated and existing under the laws of the Netherlands,   having its registered office in Blaak 40, Fifth Floor, 300 ITA, Rotterdam, The   Netherlands (FS Europe).   FS Corporation and FS Europe, together, Sellers, and each, a Seller.   (3) Morita Holdings Corporation, a company incorporated and existing under   the laws of Japan, having its registered office in Keihanshin-Midosuji Building   12F, 3-6-1 Dosho-machi, Chuo-ku, Osaka-shi, Osaka, 541-0045, Japan (Buy-   er).   BACKGROUND   (A) Bronto Skylift Oy Ab (business identity code 1016431-6) is a limited liability   company incorporated and existing under the laws of Finland, having its regis-   tered office in Teerivuorenkatu 28, FI-33300 Tampere, Finland (Company).   Bronto Skylift, Inc. is a company incorporated and existing under the laws of   New York, having its registered office in Cortland County, New York, USA   (Bronto Skylift, Inc.). The Company, its Subsidiaries and Bronto Skylift, Inc.   are engaged in the business of development, manufacture and marketing of aer-   ial platforms used for firefighting, rescue and industrial applications (Busi-   ness).   (B) FS Corporation owns 504 and FS Europe owns 506 issued and outstanding   shares in the Company, i.e. the Sellers together own 1,010 issued and outstand-   ing shares in the Company, representing on a fully diluted basis 100% of the is-   sued and outstanding shares in the Company (Company Shares). FS Corpo-   ration owns 1,000 issued and outstanding shares in Bronto Skylift, Inc., repre-   senting on a fully diluted basis 100% of the issued and outstanding shares in   Bronto Skylift, Inc. (Inc. Shares).   (C) The Company owns 95% of the Ky Partnership Interests and FS Europe owns   5% of the Ky Partnership Interests (Transferred Ky Partnership Inter-   ests)(Company Shares, Inc. Shares and Transferred Ky Partnership Inter-   ests, together, Shares)   (D) The Sellers wish to sell and the Buyer wishes to purchase by itself or through   the Company the Shares on the terms and subject to the conditions set out in   this Agreement.   IT IS AGREED as follows:      1 DEFINITIONS   1.1 When used in this Agreement, unless a contrary intention appears, the following definitions   shall have the following meanings. References to Schedules and Sections shall mean Schedules   and Sections of this Agreement and, unless a contrary intention appears, references to persons   shall include individuals, corporations, partnerships and unincorporated bodies of persons.   Accounting Princi- means the relevant laws and generally accepted accounting principles in each     





 







6 (43)      ples relevant jurisdiction as adopted and consistently applied by each Group Compa-   ny in compliance with such laws and principles.    Accounts Date means 30 June 2015.   Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry,   audit, notice of violation, proceeding, litigation, citation, summons, subpoena or   investigation of any nature, civil, criminal, administrative, regulatory or other-   wise, whether at law or in equity.   Adjustment Amount means the aggregate of the Net Debt Adjustment and the Net Working Capital   Adjustment as set out in Section 3.1.1.   Affiliate means, with respect to any natural or legal person, any other natural or legal   person that, directly or indirectly through one or more intermediaries, either   controls, is controlled by, or is under common control with such person, provid-   ed, however, that any Group Company shall not for the purposes of this Agree-   ment be considered an Affiliate of the Sellers.   Agreement means this share sale and purchase agreement together with the Schedules and   the Disclosure Schedule hereto.   Basket has the meaning set out in Section 8.2.2.1 (b).   Board means the board of directors of the Company.   Bronto Skylift, Inc. has the meaning set out in the introductory paragraph (A) hereof.   Bronton Kiinteistöt   Ky   means Bronton Kiinteistöt Ky (business identity code 1610086-6), a limited   partnership incorporated and existing under the laws of Finland, having its regis-   tered office in Teerivuorenkatu 28, FI-33300 Tampere, Finland.   Business has the meaning set out in the introductory paragraph (A) hereof.   Business Day means a day (other than Saturday, Sunday or a public holiday) on which the   banks are open for routine business in Helsinki, Finland, Tokyo, Japan and New   York City, United States.   Business Products means the products and service offerings, including computer software, of the   Group that have been sold, licensed, distributed, or otherwise disposed of, as   applicable, or that the Group intends to sell, license, distribute, or otherwise   dispose of in the future, including any products or service offerings under devel-   opment.   Buyer has the meaning set out in the introductory paragraph (3) hereof.   Buyer’s Fundamen-   tal Warranties   means the representations and warranties given by the Buyer in Section 9.2 (Or-   ganization and Existence of Buyer), Section 9.3 (Power and Authorization of   Buyer; Enforceable Agreement), and Section 9.6 (Authority Approvals).   Buyer’s Warranties means the representations and warranties given by the Buyer in Section 9.   Claim means any claim made against the Sellers in respect of any breach or non-   fulfillment of this Agreement.   Closing means the completion of the Transaction as set out in Section 6.   Closing Accounts has the meaning set out in Section 3.3.1.   Closing Date means the date of completion of the Transaction as specified in Section 6.1.1.     





 







7 (43)      Company has the meaning set out in the introductory paragraph (A) hereof.   Company Shares has the meaning set out in the introductory paragraph (B) hereof.   Computer Technol-   ogy   means any computer hardware or software used by the Group.   Conditions Prece-   dent   means the Buyer’s or Sellers’ conditions precedent to the sale and purchase of   the Shares as set out in Section 4.   Confidential Infor-   mation   means any and all non-public information of any kind and in any form, includ-   ing, without limitation, all technical, financial and commercial information,   trade secrets, client lists and other proprietary business information regarding   the Group, the Business, the Sellers, the Buyer, or any of their respective Affili-   ates.   Current Assets means accounts receivable, deferred charges, prepaid expenses and other pre-   paid items, and inventory, but excluding any prepaid income taxes and value   added tax receivables, all calculated in accordance with the Management Ac-   counts Accounting Principles. An example calculation of the Current Assets is   included in Schedule 3.3.1.    Current Liabilities means accounts payable, deferred revenue and other current liabilities but ex-   cluding current income taxes and value added tax payables, all calculated in ac-   cordance with the Management Accounts Accounting Principles and shall not   include the current portion of interest bearing debt. An example calculation of   the Current Liabilities is included in Schedule 3.3.1.   Data Room means the virtual data room (including the questions and answers files in Excel   format posted therein) operated by Intralinks, Inc. in connection with the Trans-   action, as supplemented from time to time prior to the Closing Date with respect   to any event that occurred after the Signing Date.   Deductible has the meaning set out in Section 8.2.2.1(a).   Disclosure Material means the documents and information contained in the Data Room and the writ-   ten information disclosed by the Sellers or the Group Companies (or their advi-   sors or representatives) to the Buyer (or its advisors or representatives) in the   information memorandum and in the management presentations (each, dis-   closed in the Data Room), and in this Agreement, including the schedules ap-   pended hereto and the Disclosure Schedule.   Disclosure Schedule means the disclosure schedule attached to this Agreement (including material in   the Data Room referenced therein), as supplemented from time to time prior to   the Closing Date with respect to any event that occurred after the Signing Date.   Due Diligence Re-   view   means the business, legal, financial, tax, human resources, information technol-   ogy, technical, insurance and environmental due diligence review of the Group   conducted by the Buyer prior to the date of this Agreement.   Employee Benefit   Plans   means any incentive compensation plans, deferred compensation plans, bonus   plans, executive compensation plans, severance plans, change in control agree-   ments, statutory and voluntary pension plans or retirement plans, employee   profit sharing plans, employee equity purchase plans, phantom equity plans,   group life insurance, medical, hospitalization, insurance, key man insurance,   welfare plans, and any other plans or benefits provided by any Group Company   including pension, lump sum, gratuity or other like benefit provided or to be   provided on retirement or on death, or by virtue of a pension sharing order or   provision, or in anticipation of retirement, or, in connection with past service,     





 







8 (43)      after retirement or death.   Encumbrance means any charge (fixed or floating), pledge, mortgage, lien or other security   interest securing an obligation; any equitable interest, option, easement, en-   croachment, right or way, right of first refusal, or restriction on use, voting,   transfer, receipt of income or exercise of any other attribute of ownership; or any   agreement or commitment to give or create any of the foregoing.   Environmental Laws means any applicable law, and any Governmental Order or binding agreement by   a Group Company with any Governmental Authority relating to pollution (or the   cleanup thereof) or the protection of natural resources, endangered or threat-   ened species, human health or safety, or the environment (including ambient air,   soil, surface water or groundwater, or subsurface strata); or concerning the pres-   ence of, exposure to, or the management, manufacture, use, containment, stor-   age, recycling, reclamation, reuse, treatment, generation, discharge, transporta-   tion, processing, production, disposal or remediation of any Hazardous Materials   or the liability to compensate environmental damages.   Environmental   Permits   has the meaning set out in Section 7.2.18.1.   Environmental Re-   lease   means, with respect to Hazardous Materials, any actual release, spilling, leaking,   pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,   dumping, abandonment, disposing or allowing to escape or migrate into or   through the environment (including, without limitation, ambient air (indoor or   outdoor), surface water, groundwater, land surface, soil or subsurface strata or   within any building, structure, facility or fixture).   FS Corporation has the meaning set out in the introductory paragraph (1) hereof.   FS Europe has the meaning set out in the introductory paragraph (2) hereof.   Fundamental War-   ranties   means, collectively, the Sellers’ Fundamental Warranties and the Buyer’s Fun-   damental Warranties.   Governmental Au-   thority   means any federal, state, local or foreign government or political subdivision   thereof, or any agency or instrumentality of such government or political subdi-   vision, or any self-regulated organization or other non-governmental regulatory   authority or quasi-governmental authority (to the extent that the rules, regula-   tions or orders of such organization or authority have the force of law), or any   arbitrator, court or tribunal of competent jurisdiction.   Governmental Or-   der   means any decision, order, writ, judgment, injunction, decree, stipulation, de-   termination or award entered by or with any Governmental Authority.   Group Company means the Company or any Subsidiary or Bronto Skylift, Inc.   Group or Group   Companies   means the Company together with the Subsidiaries and Bronto Skylift, Inc.   Hazardous Materi-   als   means any material, substance, chemical, waste, product, derivative, compound,   mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring   or manmade, that is hazardous, toxic, or words of similar import or regulatory   effect under Environmental Laws; and any petroleum or petroleum-derived   products, radon, radioactive materials or wastes, asbestos in any form, lead or   lead-containing materials, urea formaldehyde foam insulation, and polychlorin-   ated biphenyls.   Inc. Seconded Em-   ployees   has the meaning set out in Section 5.4.1.      





 







9 (43)      Inc. Shares has the meaning set out in the introductory paragraph (B) hereof.   Indemnified Party has the meaning set out in Section 8.1.1.   Indemnifying Party has the meaning set out in Section 8.1.1.   Independent Audi-   tor   has the meaning set out in Section 3.3.2.   Initial Purchase   Price   means the initial consideration payable for the Shares as set out in Section 3.1.1.   Intellectual Proper-   ty Rights   means all intellectual property rights including patents, utility models, designs,   copyright with neighboring rights, rights in domain names, trademarks and   trade names (whether registered or unregistered), goodwill, database rights,   know how, inventions, trade secrets and confidential information; all other intel-   lectual property rights and similar or equivalent rights anywhere in the world   which currently exist or are recognized in the future; and applications, exten-   sions and renewals in relation to any such rights.   Intra-Group Net   Indebtedness   means (i) the aggregate amount of the interest-bearing indebtedness or other   accrued liabilities owed by any of the Group Companies to the Sellers or their   Affiliates, minus (ii) the interest-bearing indebtedness or other accrued liabilities   owed by the Sellers or their Affiliates to any of the Group Companies, in each   case of (i) and (ii) as specified in Schedule 6.2.2 (d), plus (iii) any interest-   bearing indebtedness resulting from additional financing provided by the Sellers   or their Affiliates to the Group Companies prior to Closing and minus (iv) any   interest-bearing indebtedness provided by any of the Group Companies to the   Sellers or their Affiliates prior to Closing.   Key Employees means the employees of the Group Companies that are identified as key employ-   ees as listed in Schedule 7.2.16.1.   Ky Partnership In-   terests   means all of the partnership interests in Bronton Kiinteistöt Ky.   Latvia Compensa-   tion   has the meaning set out in Section 3.4.3.   Latvia Litigation  has the meaning set out in Section 3.4.3.   Long-Stop Date means the date of 15 February 2016.   Loss means any direct loss, damage, liability, judgment, interest, award, penalty, fine   and expense actually incurred (including, further, reasonable costs of defense,   investigation and attorneys’ fees and the cost of enforcing any indemnification   right hereunder) (and net of any actual Finnish income tax benefit related to   deductions of such expenditures) by the relevant Party (including any loss of   profit to the extent the relevant occurrence to which it relates is directly respon-   sible for such loss). A Loss shall not be calculated as a multiple of EBIT, profit or   any other similar type of metric. For the avoidance of doubt, neither Party shall   be prevented from presenting a claim against the other Party asserting a Loss   solely because the effect of any Finnish income tax benefit is not yet determina-   ble.   LTM Monthly Aver-   age Working Capital   means the average of the month-end Net Working Capital for the twelve-month   period ended 31 October 2015, which amounts to EUR 29,983,000, as specified   in Schedule 3.3.1.   Management Ac- means the consolidated balance sheets and income statements of the Group as at     





 







10 (43)      counts 31 December 2014 and 30 June 2015 attached hereto as Schedule 7.2.8.1, and   prepared by the Company in accordance with the Management Accounts Ac-   counting Principles.   Management Ac-   counts Accounting   Principles   means accounting principles generally accepted in the United States, consistently   applied.   Management Ser-   vice Agreement   means the Management Service Agreement entered into between the Company   and FS Corporation effective 1 January 2011.   Material Adverse   Effect   means any event, occurrence, fact, condition or change that is, individually or in   the aggregate, materially adverse to (a) the business, results of operations, finan-   cial condition or assets of the Group, taken as a whole or (b) the ability of the   Parties to consummate the Transaction on a timely basis; provided, however,   that Material Adverse Effect shall not include any event, occurrence, fact,   condition or change, directly or indirectly, arising out of or attributable to: (i)   general economic conditions; (ii) conditions generally affecting the industries in   which the Group operates; (iii) any action required by this Agreement, except   pursuant to approvals from Governmental Authorities referenced in Section   4.1.1(a); (iv) the public announcement of the Transaction; (v) any geopolitical   conditions (including acts of terrorism, war and other military actions) and natu-   ral disasters; (vi) any change in law or accounting standards or interpretations   thereof; (vii) any condition, restriction or action that the Buyer agrees to in con-   nection with securing the Required Approvals; or (viii)  matters that Sellers have   expressly disclosed in the Disclosure Schedule as of the Signing Date; except in   the cases of clauses (i), (ii) and (v) above to the extent such event, occurrence,   fact, condition or change has a disproportionate effect on the Group compared to   other participants in the industries in which the Group operates; and except in   the case of clause (viii) above to the extent any such event, occurrence, fact, con-   dition or change was not a reasonably foreseeable result of such expressly dis-   closed matters.   Material Agreement   means any agreements (i) that each have value of EUR300,000 or more annually   and to which any Group Company is a party with any customers, distributors,   agents, suppliers, vendors or service providers or (ii) that are otherwise material   or necessary for the Business.   Net Debt means the aggregate of the interest-bearing debt of the Group, less the cash and   cash equivalents of the Group calculated in accordance with the Management   Accounts Accounting Principles. For clarity, any assets or liabilities of the Group   included in the Net Working Capital shall not be included in calculating the Net   Debt. An example calculation of the Net Debt is included in Schedule 3.3.1.   Net Debt Adjust-   ment   means the amount by which the Net Debt at the Closing Date, based on the Clos-   ing Accounts, exceeds (in which case the Net Debt Adjustment is a negative fig-   ure) or is less than (in which case the Net Debt Adjustment is a positive figure)   EUR 4,000,000.   Net Working Capital means the aggregate of the Current Assets of the Group less the aggregate of the   Current Liabilities of the Group. An example calculation of the Net Working Cap-   ital is included in Schedule 3.3.1.   Net Working Capital   Adjustment   means the amount by which the Net Working Capital at the Closing Date, based   on the Closing Accounts, exceeds (in which case the Net Working Capital Ad-   justment is a positive figure) or is less than (in which case the Net Working Capi-   tal Adjustment is a negative figure) the LTM Monthly Average Working Capital.   Ordinary Course of   Business   means the conduct of the day-to-day business of each Group Company as histori-   cally conducted and in accordance with sound and prudent business practice   (recognizing that the day-to-day operation of the Business includes large transac-   tions involving, without limitation, purchasing, production, sales and credit en-    





 







11 (43)      hancements (including guaranties and other forms of security posted to secure   obligations of the Group Companies and its distributors)).   Parent Company   Guarantees    means the parent company guarantees issued, or other collateral rendered, by   Sellers or their Affiliates on behalf of the Companies listed in Schedule 5.5.1 (ii).   Party means any of the Sellers or the Buyer, and Parties shall be construed according-   ly.   Phase I Environ-   mental Report   means the report dated November 26, 2015 prepared by ERM Consulting and   Engineering, Inc. on the phase 1 environmental due diligence conducted by it on   the Tampere site and Pori site in connection with the Due Diligence Review.   Purchase Price means the consideration payable for the Shares as set out in Section 3.1.1.   Real Property means the real property listed in Schedule 7.2.10.1.   Related Party   Agreements   means agreements and other similar arrangements entered into between the   Group Companies and any of the Sellers or their Affiliates, all listed in Schedule   7.2.15.1.   Required Approvals means a decision by the Finnish Ministry of Employment and the Economy, or   the Council of State, as the case may be, authorizing the Transaction in accord-   ance with the Act on the Monitoring of Foreigners’ Corporate Acquisitions   (172/2012, as amended).    Review Period has the meaning set out in Section 3.3.2.   Sadepo Oy Lease-   hold   has the meaning set out in Section 5.5.3.   Sellers has the meaning set out in the introductory paragraph (2) hereof.   Sellers’ Bank Ac-   counts   means the Sellers’ bank accounts listed on Schedule 3.1.2.   Sellers’ Fundamen-   tal Warranties   means the representations and warranties given by the Sellers in Section 7.2.1   (Organization and Existence of Sellers), Section 7.2.2 (Power and Authorization   of Sellers; Enforceable Agreement; Authority Approvals), Section 7.2.3 (Title and   Authority to Transfer the Shares), Section 7.2.4 (Organization and Existence of   the Company and the Subsidiaries), Section  7.2.5 (Ownership in Subsidiaries   and Other Participations, and Section 7.2.6 (Capitalization).   Sellers’ Knowledge means the knowledge of any member of the Board or the board of Bronto Skylift,   Inc. or any Key Employees (excluding Key Employees number 5, 6 and 7 as listed   on Schedule 7.2.16.1), after exercise of reasonable inquiry by such person to em-   ployees under such person’s direct reporting lines.    Sellers’ Warranties means the representations and warranties given by the Sellers in Section 7.2.   Shares has the meaning set out in the introductory paragraph (C) hereof.   Signing means the signing of this Agreement by the Sellers and the Buyer on the Signing   Date.   Signing Date means the date of the signing of this Agreement stated at the beginning of this   Agreement.   Statement of Objec-   tions   has the meaning set out in Section3.3.2.     





 







12 (43)      Statutory Accounts means (i) the statutory audited consolidated financial statements of the Compa-   ny as at 31 December 2014 prepared in accordance with the Accounting Princi-   ples of Finland and (ii) the stand-alone financial statements of each Group Com-   pany other than the Company, each as at 31 December 2014, and prepared in   accordance with the Accounting Principles.   Subsidiary means any of the subsidiaries of the Company, the details of which are set out in   Schedule 7.2.5.1.   Tax Litigation has the meaning set out in Section 3.4.1.   Tax or Taxes means all taxes and tax-like charges (including direct and indirect corporate   income taxes, corporation tax, capital gains tax, federal and state tax, transfer   taxes, value added tax, sales tax, customs charges, withholding tax, mandatory   employment pension contributions and social security contributions and taxes,   employer’s tax, customs, excise and other duties) and any other taxes which may   be payable to or imposed by any tax authority or other governmental entity to-   gether with any late payment charges or other penalty charges, surcharges, or   other additions to tax in relation to any of the aforesaid.   Tax Return means any return, declaration, report, claim for refund, information return or   statement or other document relating to Taxes, including any schedule or at-   tachment thereto, and including any amendment thereof.   Third Party Claim means any claim by a third party (including authorities) against any of the Group   Companies or the Buyer resulting in a potential breach by a Seller of the Agree-   ment.   Transaction means the sale by the Sellers and the purchase by the Buyer of the Shares and all   other transactions contemplated by the agreements and documents to be signed   and/or delivered by the Sellers to the Buyer or by the Buyer to the Sellers, all in   accordance with the terms and conditions of this Agreement.   Transferred Ky   Partnership Inter-   ests   has the meaning set out in the introductory paragraph (C) hereof.   Transitional Ser-   vices Agreement   means a Transitional Services Agreement to be negotiated between the Sellers   and the Buyer.      2 SALE AND PURCHASE OF THE SHARES   2.1 Object of Sale   2.1.1 Upon the terms and subject to the conditions of this Agreement, and in accord-   ance with the following sequence only: (i) the Sellers shall sell and the Buyer   shall purchase the Company Shares at the Closing, and then (ii) FS Corporation   shall sell and the Company shall purchase the Inc. Shares at the Closing, and   then (iii) FS Europe shall sell and the Company shall purchase the Transferred   Ky Partnership Interests at the Closing.   2.2 Transfer of title   2.2.1 The full and unrestricted ownership of and title to the Company Shares, free   and clear of any Encumbrances, shall pass from the Sellers to the Buyer at the   Closing, and then (ii) the full and unrestricted ownership of and title to the Inc.   Shares, free and clear of any Encumbrances, shall pass from FS Corporation to   the Company at the Closing, and then (iii) the full and unrestricted ownership     





 







13 (43)      of and title to the Transferred Ky Partnership Interests, free and clear of any   Encumbrances, shall pass from FS Europe to the Company at the Closing   against the Sellers receiving the Initial Purchase Price and upon completion of   the Closing deliveries in accordance with Section 6.2.   3 PURCHASE PRICE AND PAYMENT   3.1 Purchase Price   3.1.1 The aggregate purchase price for the Shares is EUR 76,000,000 (Initial Pur-   chase Price) plus, on a euro-for-euro basis, an amount equal to the aggregate   of the Net Debt Adjustment and the Net Working Capital Adjustment (Ad-   justment Amount) (together, Purchase Price), and it shall be paid and cal-   culated as set forth in this Section 3.     3.1.2 All payments of the Purchase Price shall be made by Buyer by way of direct   transfer of immediately available funds to the Sellers’ Bank Accounts in the   amounts for each respective Seller as set forth in Schedule 3.1.3, notwithstand-   ing that it shall be the Company acquiring the Inc. Shares and the Transferred   Ky Partnership Interests as set forth in Section 6.2.3.   3.1.3 The Purchase Price shall be allocated among the Sellers as set out in Schedule   3.1.3.   3.2 Payment of the Initial Purchase Price   3.2.1 The Buyer shall pay and the Sellers shall receive the Initial Purchase Price at   the Closing.   3.3 Determination and Payment of the Adjustment Amount   3.3.1 The Buyer shall cause the Company to prepare a calculation of the amounts of   the Net Debt and Net Working Capital as per the Closing Date in accordance   with the Management Accounts Accounting Principles, and of the Adjustment   Amount (Closing Accounts). The Buyer shall deliver the Closing Accounts to   the Sellers within 30 Business Days from the Closing Date.   3.3.2 Within 15 Business Days of the receipt of the Closing Accounts (Review Peri-   od), the Sellers shall jointly notify the Buyer of whether they accept the Closing   Accounts. On or prior to the last day of the Review Period, the Sellers may disa-   gree with the Closing Accounts by delivering to the Buyer a written statement   setting forth Sellers’ objections in reasonable detail, indicating each disputed   item or amount and the basis for Sellers’ disagreement therewith (Statement   of Objections). If the Sellers fail to deliver the Statement of Objections before   the expiration of the Review Period, the Closing Accounts prepared by the Buy-   er shall be deemed to have been accepted by the Sellers. If the Statement of Ob-   jections is duly delivered by the Sellers, the Parties shall negotiate in good faith   for a period of 10 Business Days, with the objective of resolving such disagree-   ment. If the Parties cannot resolve the dispute, such dispute shall be settled by   an unbiased internationally recognized reputable accounting firm which shall   be jointly appointed by the Parties or, if the Parties cannot agree on such, by   Ernst & Young, Oy (Independent Auditor). If the Parties have not reached   an agreement within the agreed negotiation period of 10 Business Days, the In-   dependent Auditor must be named immediately after the said period. The In-   dependent Auditor shall act as an expert and not as an arbitrator and shall only   resolve issues relating to the Closing Accounts and the calculation of the Ad-   justment Amount. Other disagreements relating to this Agreement are resolved   in accordance with Section 14.     





 







14 (43)      3.3.3 Each Party shall be entitled to make a written submission of its arguments re-   garding the disagreement to the Independent Auditor, and shall promptly pro-   vide the other Parties a copy of such submission, as well as any further submis-   sion it may make at any time during the review. Each Party shall (and the Buyer   shall procure that the Group shall), at its own cost and expense, provide the In-   dependent Auditor with such assistance and information as the Independent   Auditor may reasonably require. The Independent Auditor shall render its final   written decision within 30 calendar days from its appointment. The Parties are   obliged to comply with the Independent Auditor's decision. The costs and fees   of the Independent Auditor shall be allocated between the Buyer, on the one   hand, and the Sellers jointly, on the other hand, in proportion to the difference   between the Independent Auditor’s decision and the value claimed by the Buyer   and the Sellers. If a Party is of the opinion that the Independent Auditor has ex-   ceeded its mandate, has not been independent, or that some other manifest er-   ror has occurred, such Party may initiate arbitration proceedings in accordance   with Section 14.1.1 within 30 calendar days from the rendering of the Inde-   pendent Auditor’s decision. However, subject to the said possibility, the Inde-   pendent Auditor’s decision has to be complied with immediately after it has   been rendered.   3.3.4 If a Party does not comply with the Independent Auditor's decision, the other   Parties may seek an arbitral award against the non-complying party in accord-   ance with Section 14.1.2.   3.3.5 Upon receiving the Closing Accounts, the Sellers and their advisors shall, to the   extent permitted by the relevant laws and subject to the execution of standard   confidentiality undertakings, have reasonable access to the books and records   of the Group for the purposes of evaluating and verifying the Closing Accounts   during normal business hours of the Group and with sufficient prior written no-   tice.    3.3.6 The Adjustment Amount shall be paid   (i) if a positive figure, by the Buyer to the account of FS Corporation speci-   fied in Sellers’ Bank Accounts or as otherwise directed by the Sellers; or   (ii) if a negative figure, by the Sellers to the Buyer’s bank account as noti-   fied by the Buyer to the Sellers;   by way of direct transfer of immediately available funds within 5 Business Days   from the date when the Sellers accepted the Closing Accounts or a final and   binding resolution on the Closing Accounts has been issued by the Independent   Auditor.   3.3.7 For the avoidance of doubt, Current Assets, Current Liabilities, Net Working   Capital, Net Debt and the calculation of the Adjustment Amount hereunder will   reflect no effects of any Closing transaction sequencing or from Buyer’s funding   of the Purchase Price.    3.4 Refunds and Payments for Tax and Latvia Litigation   3.4.1 To the extent the Company actually recovers any amount of tax refund from the   Finnish tax authority with respect to the tax dispute with the Finnish tax au-   thority relating to the disposal of E-One Canada in 2007 and deductions made   for certain bad debts (Tax Litigation), the Buyer shall promptly cause the   Company to pay the Sellers an amount equal to the amount of such tax refund   (subject to withholding of applicable taxes on such payments to the Sellers, if   any). The Sellers shall bear all costs and expenses regarding such tax dispute   regardless of the outcome of the dispute.   3.4.2 The Sellers shall be liable for all Taxes (except those Taxes included in the de-   termination of the Net Working Capital as of Closing Date) incurred or accrued     





 







15 (43)      by the Group Companies with respect to the period prior to the Closing Date,   and still owed to the tax authorities after the Closing Date. Upon determination   of the actual amounts of such Taxes after the Closing Date with respect to each   of (i) fiscal year end 2015 and (ii) the interim period in 2016 prior to the Clos-   ing, the Sellers shall promptly make payment to the Buyer of an amount equal   to the amounts of such Taxes upon receipt of notification and adequate sup-   porting documentation and calculation of such amounts from the Buyer.    Similarly, upon determination of the amount of any refunds or overpayments of   Taxes (except those Taxes included in the determination of the Net Working   Capital as of Closing Date) with respect to the period prior to the Closing Date,   the Buyer shall with respect to each of the fiscal year end 2015 and the interim   period in 2016 prior to the Closing diligently apply for, and upon receipt thereof   promptly make payment to the Seller of, the amount of such refunds or over-   payments of Taxes, accompanied by adequate supporting documentation and   calculation of such amounts from the Buyer. For the avoidance of doubt, as it   relates to the determination of income taxes for the interim period in 2016 pri-   or to the Closing, incurred or accrued income taxes shall be calculated based on   actual taxable income or loss generated during the interim period. In addition,   after the Closing Date, the Buyer agrees to prepare and file any Tax return cov-   ering periods prior to the Closing Date, and make any of the calculations ac-   cording to this Section 3.4.2, consistent with the tax accounting methods and   tax elections used by the Company prior to the Closing Date.    3.4.3 Upon a final and non-appealable decision by a court of competent jurisdiction   with respect to the Company’s pending litigation in Latvia against SIA DnB   NORD Lizings (Latvia Litigation), (i) to the extent the Group Companies are   liable for any amount pursuant to such decision, the Sellers shall be liable to   compensate 50 % of any such amount (and net of any actual income tax benefit   related thereto for the Group Companies) reduced by 50 % of the out-of-pocket   legal costs incurred by the Sellers for the period after the Closing Date in de-   fending the litigation pursuant to Section 3.4.4 to which the decision relates or   (ii) to the extent the Group Companies have actually recovered any amount   pursuant to such decision, the Buyer shall transfer 50 % of any such amount in-   creased by 50 % of the out-of-pocket legal costs incurred by the Sellers for the   period after the Closing Date in defending the litigation pursuant to Section   3.4.4 to which the decision relates (Latvia Compensation). The Sellers shall   promptly make payment to the Buyer and the Buyer shall promptly make pay-   ment to the Sellers (subject to withholding of applicable taxes on such pay-   ments to the Buyer or the Sellers, if any) for the Latvia Compensation upon re-   ceipt of notification and all supporting documentation that the Sellers may rea-   sonably require regarding such decision. The Sellers and the Buyer shall pro-   vide all supporting documentation regarding such costs to the other party to   claim the deduction or addition of any costs in accordance with this Section   3.4.3.    3.4.4 In respect of the Latvia Litigation and the Tax Litigation:    (a) the Sellers shall conduct and remain in control of all negotiations and   proceedings related thereto in its sole discretion (including the right to   select legal counsel and determine legal strategies without limitation of   Section 3.4.5(b) below) and, on or prior to the Closing, the Sellers shall   assume all the rights and obligations of the Company under the current   engagement between the Company and its legal advisors in respect of   the Latvia Litigation and the Tax Litigation and cause the Company to   be released from all of its obligations thereunder on the understanding   that after the Closing (i) engagement of the legal advisor in respect of   the Latvia Litigation and the Tax Litigation shall be the sole responsibil-   ity of the Sellers and (ii) the Company shall not be responsible for any   of the legal costs or other similar costs incurred in relation to the Latvia   Litigation or the Tax Litigation; and     





 







16 (43)      (b) the Buyer shall provide, and shall procure that each Group Company   provides, all support and documentation that the Sellers may reasona-   bly request or require to conduct the negotiations and proceedings.   3.4.5 In respect of the Latvia Litigation:    (a) the Sellers shall not make any admission of liability or enter into any   settlement or compromise without obtaining the prior written consent   of the Buyer, which consent shall not be unreasonably withheld or de-   layed;   (b) the Buyer or its counsel shall have the right to participate in negotia-   tions and proceedings as an observer and the Sellers shall consult the   Buyer or its counsel when determining legal strategies; and   (c) the Sellers shall keep the Buyer and Group Companies promptly in-   formed regarding each development relating to the Latvia Litigation   such as any development in the advice of counsel, any communication   with the counterparties in the litigation, and any court filing of motions   or papers or appearance.   3.4.6 Any payment under Sections 3.4.1, 3.4.2 or 3.4.3 shall be treated as an adjust-   ment of the Purchase Price.   3.5 Transfer Tax and Costs   3.5.1 The Buyer shall pay any transfer tax and other costs levied on the purchase of   the Shares (if any) as set out in Section 6.2.1(c).   4 CONDITIONS PRECEDENT TO CLOSING   4.1 Conditions Precedent to Obligations of All Parties   4.1.1 The obligations of the Buyer and the Sellers, respectively, to enter into Closing   hereunder shall be subject to the  fulfillment, at or prior to Closing, of each of   the following conditions:    (a) The Required Approvals shall have been made or received, as applica-   ble, and, including any executed counterparts thereof, shall have been   delivered to the Parties.   (b) No Action shall have been commenced against Buyer, Sellers or any   Group Company, which would prevent the Closing. No injunction, re-   straining order or Governmental Order shall have been issued by any   relevant Governmental Authority, and be in effect, which prohibits the   Transaction.      4.2 Conditions Precedent to Obligations of Buyer   4.2.1 The obligations of Buyer to enter into Closing hereunder shall be subject to the   fulfillment or Buyer's waiver, at or prior to Closing, of each of the following   conditions:   (a) Other than the Sellers’ Fundamental Warranties, the Sellers’ Warran-   ties (i) shall be true and correct in all respects, in the case of any repre-   sentation or warranty qualified by materiality or Material Adverse Ef-   fect, and (ii) shall be true and correct in all material respects, in the case   of any representation or warranty not qualified by materiality or Mate-   rial Adverse Effect; in the case of foregoing clauses (i) and (ii), on and   as of the Signing Date and on and as of the Closing Date with the same   effect as though made at and as of such date (except those representa-   tions and warranties that address matters only as of a specified date,     





 







17 (43)      the accuracy of which shall be determined as of that specified date in all   respects).    (b) The Sellers’ Fundamental Warranties shall be true and correct in all re-   spects on and as of the date hereof and on and as of the Closing Date   with the same effect as though made at and as of such date (except   those representations and warranties that address matters only as of a   specified date, the accuracy of which shall be determined as of that   specified date in all respects).   (c) Other than the Sellers’ Fundamental Warranties, the Sellers’ Warran-   ties, to the extent supplemental disclosure relevant for such Warranties   has been made in the Disclosure Schedule (including references therein   to the Data Room) with respect to information that becomes available   only after the Signing Date, (i) shall, without giving effect to such sup-   plemental disclosure, be true and correct in all respects, in the case of   any representation or warranty qualified by materiality or Material Ad-   verse Effect, and (ii) shall, without giving effect to such supplemental   disclosure,  be true and correct in all material respects, in the case of   any representation or warranty not qualified by materiality or Material   Adverse Effect; in the case of foregoing clauses (i) and (ii), on and as of   the Closing Date with the same effect as though made at and as of such   date (except those representations and warranties that address matters   only as of a specified date, the accuracy of which shall be determined as   of that specified date in all respects).   (d) The Sellers’ Fundamental Warranties, to the extent supplemental dis-   closure relevant for such Fundamental Warranties has been made in   the Disclosure Schedule (including references therein to the Data   Room) with respect to information that becomes available only after the   Signing Date, shall, without giving effect to such supplemental disclo-   sure, be true and correct in all respects on and as of the Closing Date   with the same effect as though made at and as of such date (except   those representations and warranties that address matters only as of a   specified date, the accuracy of which shall be determined as of that   specified date in all respects).   (e) The Sellers shall have duly performed and complied in all material re-   spects with all agreements, covenants and conditions required by this   Agreement to be performed or complied with by them prior to Closing;   provided, that, with respect to agreements, covenants and conditions   that are qualified by materiality, the Sellers shall have performed such   agreements, covenants and conditions, as so qualified, in all respects.   (f) There shall not have occurred any Material Adverse Effect, nor shall   any event or events have occurred that, individually or in the aggregate,   with or without the lapse of time, could reasonably be expected to result   in a Material Adverse Effect.    (g) All agreements, documents, instruments or certificates required to be   executed and/or delivered by the Sellers to the Buyer at or prior to the   Closing pursuant to Section 6.2.2 and Section 6.2.3 shall have been exe-   cuted and/or delivered.   (h) Except in the exercise of its rights attendant to a termination for cause   after giving written notice thereof to the Buyer, the Company has not   terminated the Managing Director Agreement dated on 3 August 2015   with Harry Clayhills (Managing Director of the Company), nor has the   Company given a notice of termination thereof to him.        





 







18 (43)      4.3 Conditions Precedent to Obligations of the Sellers   4.3.1 The obligations of each Seller to enter into Closing hereunder shall be subject to   the fulfillment or such Seller’s waiver, at or prior to Closing, of each of the fol-   lowing conditions:    (a) Other than the Buyer’s Fundamental Warranties, the Buyer’s Warran-   ties (i) shall be true and correct in all respects, in the case of any repre-   sentation or warranty qualified by materiality or Material Adverse Ef-   fect, and (ii) shall be true and correct in all material respects, in the case   of any representation or warranty not qualified by materiality or Mate-   rial Adverse Effect; in the case of foregoing clauses (i) and (ii), on and   as of the Signing Date and on and as of the Closing Date with the same   effect as though made at and as of such date (except those representa-   tions and warranties that address matters only as of a specified date,   the accuracy of which shall be determined as of that specified date in all   respects).   (b) The Buyer’s Fundamental Warranties shall be true and correct in all re-   spects on and as of the date hereof and on and as of the Closing Date   with the same effect as though made at and as of such date (except   those representations and warranties that address matters only as of a   specified date, the accuracy of which shall be determined as of that   specified date in all respects).   (c) The Buyer shall have duly performed and complied in all material re-   spects with all agreements, covenants and conditions required by this   Agreement to be performed or complied with by it prior to Closing;   provided, that, with respect to agreements, covenants and conditions   that are qualified by materiality, the Buyer shall have performed such   agreements, covenants and conditions, as so qualified, in all respects.   (d) All agreements, documents, instruments or certificates required to be   executed and/or delivered by Buyer to Sellers at or prior to the Closing   pursuant to Section 6.2.1 and Section 6.2.3 shall have been executed   and/or delivered.   (e) All Parent Company Guarantees shall have been fully released or collat-   eralized with letters of credit, all as set forth in Section 5.5.1.   4.4 Responsibility for Fulfillment   4.4.1 The Parties shall (i) use all commercially reasonable efforts to procure that the   Conditions Precedent are fulfilled as promptly as possible, (ii) make all neces-   sary notifications to the relevant authorities or parties, which they are required   to make under applicable laws or relevant agreements, as soon as reasonably   possible after the Signing Date including with respect to the Required Approv-   als, (iii) promptly respond to any requests for further information or clarifica-   tions, and (iv) also otherwise conduct the proceedings efficiently and in good   faith with a view toward fulfilling the Conditions Precedent expediently.   4.4.2 Each Party shall continuously keep the other Parties reasonably informed about   the progress of the notification proceedings and any matter which has resulted   in, or could reasonably be expected to result in, the failure of any of the Condi-   tions Precedent to be satisfied.  Each Party shall cooperate fully with the other   Parties in promptly seeking to obtain all such consents, authorizations, orders   and approvals in connection with the Conditions Precedent. The Parties shall   not willfully take any action that will have the effect of delaying, impairing or   impeding the satisfaction of the Conditions Precedent.   4.4.3 The Buyer shall be responsible for and shall bear all costs related to (i) the   preparation and filing by the Buyer of any necessary notifications as set out in     





 







19 (43)      Section 4.4.1 and (ii) obtaining all permits the Buyer is required to procure un-   der any applicable laws necessary to consummate the Transaction.    4.4.4 Prior to signing of this Agreement, the Buyer has conducted its own competi-   tion filing analysis and has informed the Sellers that it has not identified any   competition issue that would reasonably lead to an assumption of the existence   of issues that would materially compromise the consummation of the Transac-   tion. Therefore, each Party undertakes, as necessary, to consult with the other   Parties in respect of competition issues and the Buyer undertakes, at its own   cost and expense, to adopt reasonable so called behavior related measures or   arrangements (for the avoidance of doubt, excluding the sale of any of its assets   or divestments and recognizing that nothing in this Agreement shall require the   Sellers to make payments or incur costs in connection with obtaining the Re-   quired Approvals) that are necessary to carry out the Transaction as intended in   this Agreement.   5 PRE-CLOSING PERIOD   5.1 Conduct of Business Pending Closing   5.1.1 During the period between the Signing Date and the Closing, but always subject   to any restrictions imposed under applicable competition laws, unless other-   wise agreed in writing by the Buyer, the Sellers shall, and shall procure that the   Group Companies shall:   (a) not issue or grant any shares or securities or rights entitling to or con-   vertible into shares in a Group Company or offering or granting any op-   tion over any part of the share capital of a Group Company;   (b) not create any Encumbrance over the Shares or any material assets of   the Group Companies;    (c) not directly or indirectly, offer to, negotiate with, engage in and/or pro-   ceed with any proposals, discussions or negotiations with respect to any   sale, transfer or disposition of any shares, interests, business or assets   (except as contemplated in (e) and (f) below) of any Group Company   with any other person or entity, and shall not enter into any discussions   or negotiations with any other person or entity in connection with any   such proposals, discussions or negotiations;   (d) not enter into any new line of business or discontinue any existing lines   of business with respect to any Group Company;   (e) not purchase or acquire (by merger, consolidation, acquisition of stock   or assets or otherwise), directly or indirectly, any asset, property, inter-   est or business for a purchase price in excess of EUR50,000;   (f) not sell, lease, convey or otherwise transfer any assets of the Business   involving consideration in excess of EUR50,000;   (g) not incur any capital expenditure or any capital commitment or dispose   of or realize any capital asset (including shares in any of the Group   Companies) or any interest in any such asset, in one or a series of   transactions, in the aggregate, in excess of EUR100,000, except for cap-   ital expenditures (i) included in any capital expenditure plan approved   and disclosed to the Buyer prior to the Signing Date or (ii) consistent   with such spending by the Group Companies in the 12 months prior to   the Signing Date;   (h) not dismiss or give notice of termination to any Key Employee, except   for cause;    (i) not incur any material indebtedness (whether from the Sellers or their   Affiliates or otherwise), nor give any guarantee, indemnity or other     





 







20 (43)      agreement to secure, nor incur financial or other obligations with re-   spect to any Group Company’s or another person’s obligations;   (j) not enter into, alter or terminate any Material Agreement;   (k) not alter the terms of any existing borrowing facilities or arrange any   additional borrowing facilities;   (l) not make any loan (whether to the Sellers or their affiliates or other-   wise) or forgive any loan to any person   (m) not grant or pay any incentives to any member of the Board, managing   director, member of the board of any Subsidiary or Bronto Skylift, Inc.   or Key Employees triggered by the Transaction, nor amend or change   the existing terms of employment, bonus or incentive arrangement be-   tween the Group Companies and such persons;   (n) not transfer, assign or grant any license or sublicense of any rights to a   third party under or with respect to Intellectual Property Rights owned   by any Group Company;   (o) not take any actions to place any Group Company into administration   or to wind up any Group Company, or adopt any plan of merger, con-   solidation or reorganization involving any Group Company;   (p) not take or permit, or agree to or commit to, any action that would con-   travene any of the covenants set forth in this Section 5.1.1;   (q) operate their business, including the Business, in the Ordinary Course   of Business;   (r) maintain the current organization and business of the Group Compa-   nies and preserve the material rights, goodwill and relationships of its   employees, customers, lenders, suppliers, regulators and others having   business relationships with the Group Companies;   (s) maintain all of its material permits necessary for the business of the   Group Companies including the Business;   (t) pay its debts, Taxes and other obligations when due;   (u) maintain the material properties and assets owned, operated or used by   the Group Companies in the same condition as they were on the Sign-   ing Date, subject to reasonable wear and tear; and   (v) maintain the Group Companies’ insurance policies as referenced in Sec-   tion 7.2.19.1 in full force and effect without modification, except as re-   quired by applicable law.   5.1.2  Nothing in Section 5.1.1 above shall be interpreted to restrict or prevent:   (a) any matter consented to or requested by the Buyer in writing (such con-   sent not to be unreasonably denied, delayed or conditioned);   (b) any matter reasonably undertaken by a Group Company in the best in-   terest of such Group Company in any force majeure situation;   (c) the undertaking or performance of any obligations in the Ordinary   Course of Business pursuant to any agreement entered into by a Group   Company;   (d) any action that is specifically described in the Disclosure Schedule;   (e) any action that is reasonably required to advance and complete the sep-   aration of the Group Companies and the Business from the Sellers and   their Affiliates (other than the Group Companies); or   (f) any action pursuant to a requirement under applicable laws; or any ac-   tion required under this Agreement to be taken.     





 







21 (43)      5.2 Access to Information and Persons   5.2.1 During the period between the Signing Date and the Closing, the Sellers shall,   and shall cause the Group Companies to, in response to reasonable requests of   the Buyer or any of its representatives relating to this Agreement and the con-   summation of the Transaction and to the extent permitted by any applicable   competition or other relevant laws, during normal business hours of the Group   and subject to sufficient prior written notice from the Buyer as well as the right   for a representative of the Sellers to participate: (a) afford the Buyer and its   representatives reasonable access to and the right to inspect all of the real   properties, assets, premises, books and records, contracts and other documents   and data related to any Group Company or the Business, (b) afford the Buyer   and its representatives reasonable access to discuss with persons defined to   have Sellers’ Knowledge and other key management members and employees of   the Group Companies, (c) furnish the Buyer and its representatives with rea-   sonable financial, operating and other data and information related to any   Group Company or the Business (to be provided at the Buyer’s cost, if the Buy-   er’s request requires the Sellers or the Group to produce or compile data or in-   formation not previously produced or compiled and such request requires ex-   penditure of out-of-pocket expenses which shall not include any salary or fixed   business and operating costs), and (d) afford the Buyer access to Harry   Clayhills to discuss the terms and conditions of his employment with the Com-   pany after Closing.   5.3 Notice of Certain Events   5.3.1 During the period between the Signing Date and the Closing, a Party shall   promptly notify the other Parties in writing of:   (a) any fact, circumstance, event or action the existence, occurrence or tak-   ing of which has resulted in, or could reasonably be expected to result   in, (i) in the case of a Seller, any Sellers’ Warranties not being true and   correct, and (ii) in the case of the Buyer, any Buyer’s Warranties not be-   ing true and correct;   (b) (i) in the case of a Seller, Sellers’ actual knowledge of a circumstance,   event or action occurring after the Signing Date that causes any Buyer’s   Warranties not to be true and correct, or (ii) in the case of Buyer, Buy-   er’s actual knowledge of a circumstance, event or action occurring after   the Signing Date that causes any Sellers’ Warranties not to be true and   correct;   (c) any notice or other communication from any person alleging that the   consent of such person is or may be required in connection with the   Transactions; and   (d) any notice or other communication from any Governmental Authority   in connection with the Transaction.   The Parties acknowledge and agree that any breach of Section 5.3.1(b) shall on-   ly prevent a Party required to provide notice thereunder from bringing a Claim   after the Closing asserting that either the Sellers' Warranties or the Buyer's   Warranties (as the case may be) were not true and correct.    5.3.2 In addition to Section 5.3.1, the Sellers shall notify the Buyer of (i) any material   changes to the Company's workforce composition in advance of such changes,   and (ii) any updates and developments relating to any tax audit relating to any   Group Company, referenced in Section 7.2.17.1(c) or otherwise.   5.4 Transfer of Employees to Bronto Skylift, Inc.   5.4.1 The Sellers shall use commercially reasonable efforts at their own cost and ex-   pense to obtain written consents (in a form and substance acceptable to the     





 







22 (43)      Buyer) from, or otherwise cause through other arrangements, all employees se-   conded to and working at Bronto Skylift, Inc. as of the Signing Date (Inc. Se-   conded Employees) to transfer to Bronto Skylift, Inc. on the Closing Date.   Any retirement allowance or other severance payment payable to the Inc. Se-   conded Employees upon the termination of their employment with FS Corpora-   tion shall be borne by FS Corporation. Subject to the exercise of commercially   reasonable efforts as described above, the Sellers grant no assurance that any   Seconded Employees will remain employees of Bronto Skylift, Inc. following the   Closing, however the Sellers will provide the Buyer with all reasonable assis-   tance to help Buyer in Buyer's recruiting efforts, if any, to ensure such employ-   ees remain employed by Bronto Skylift, Inc. following the Closing.   5.5 Obtaining Consents and Providing Notices to Third Parties, and Deregistration    5.5.1 The Sellers shall use commercially reasonable efforts at their own cost and ex-   pense to obtain written consents (in a form and substance acceptable to the   Buyer) to the consummation of the Transaction from the parties as specified in   Schedule 5.5.1(i) as soon as practicable after the Signing Date and no later than   the Closing Date. The Sellers and the Buyer shall reasonably cooperate to cause   the release of the Parent Company Guarantees by the lenders as specified in   Schedule 5.5.1(ii) as soon as practicable after the Signing Date and no later than   the Closing Date (it being understood that such cooperation by the Buyer in-   cludes its offer to (i) provide, effective as of the Closing Date, guarantees that   are substantially equivalent to the Parent Company Guarantees upon reasona-   ble request of the applicable lenders, or (ii) provide, effective as of the Closing   Date, letters of credit that the Sellers may reasonably require.   5.5.2 As soon as practicable after the Signing Date and no later than the Closing Date,   the Sellers shall cause the Company to give written notice (in a form and sub-   stance acceptable to the Buyer) in connection with the Transaction to the par-   ties as specified in Schedule 5.5.2.    5.5.3 The Sellers shall use commercially reasonable efforts at their own cost and ex-   pense to cause the deregistration of the leasehold for the benefit of Sadepo Oy   which has been registered for the real estate owned by Bronton Kiinteistöt Ky   (Sadepo Oy Leasehold) as soon as practicable after the Signing Date and no   later than the Closing Date.    6 CLOSING   6.1 Closing Date and Venue    6.1.1 The Closing Date shall be January 29, 2016 or such other date as may be agreed   between the Parties in writing.    6.1.2 The Closing shall take place on the Closing Date starting at the time as may be   agreed between the Parties  at the offices of Castrén & Snellman Attorneys Ltd,   Eteläesplanadi 14, FI-00130 Helsinki, Finland.   6.2 Deliveries for Closing   6.2.1 At or prior to Closing, the Buyer shall deliver to the Sellers, or take or cause to   be taken such action, as set forth in the following:   (a) the Buyer shall deliver to the Sellers evidence of the receipt or delivery,   as the case may be, of the Required Approvals;   (b) the Buyer shall pay and the Sellers shall receive the Initial Purchase   Price in accordance with Section 3.2;     





 







23 (43)      (c) the Buyer shall pay any transfer tax and other costs levied on the trans-   fer of the Shares (if any) and, at its own expense, properly file all neces-   sary transfer tax and other documentation with respect to any transfer   tax and provide the Sellers with evidence of such payment and filing;   6.2.2 At or prior to Closing, the Sellers shall deliver to the Buyer, or take or cause to   be taken such action, as set forth in the following:   (a) the Sellers shall deliver to the Buyer evidence of the receipt or delivery,   as the case may be, of the Required Approvals;   (b) the Sellers shall sell and transfer the full and unrestricted ownership   and title to the Shares to the Buyer or the Company (as applicable);   (c) the Sellers shall deliver to the Buyer the share certificates representing   the Shares duly endorsed to the Buyer of the Company (as applicable);   (d) the Sellers shall deliver evidence that all amounts reflected in the Intra-   Group Net Indebtedness as indebtedness (including any accrued and   unpaid interest) and liabilities of the Group Companies, if any, have   been repaid in full based upon an updated specification of Intra-Group   Net Indebtedness as per the Closing to be delivered by the Sellers to the   Buyer not less than 1 Business Day prior to Closing;   (e) the Sellers shall deliver evidence that all amounts reflected in the Intra-   Group Net Indebtedness as indebtedness (including any accrued and   unpaid interest) and liabilities of the Sellers or their Affiliates, if any,   have been repaid in full based upon an updated specification of Intra-   Group Net Indebtedness as per the Closing to be delivered by the   Sellers to the Buyer not less than 1 Business Day prior to Closing;   (f) the Sellers shall deliver evidence that (i) the Group Companies’ partici-   pation (if any) in the Sellers group’s cash pool arrangement and (ii) the   Management Service Agreement have been terminated at the latest on   the Closing Date and any sums owed by or to the Group Companies in   relation thereto have been fully repaid;   (g) the Sellers and their relevant Affiliates (if applicable) and the Company   shall execute the Transitional Services Agreement materially in accord-   ance with the principles set out in Schedule 6.2.2(g) and the Sellers   shall provide a true and complete copy thereof to the Buyer;   (h) the Sellers shall provide the Buyer with letters of resignation, effective   on the Closing Date, confirming (i) the resignation of such members of   the board of directors of the Group Companies as the Buyer may desig-   nate 10 Business Days prior to the Closing and (ii) that none of the re-   signed persons have any claims, for compensation or otherwise, against   any Group Company in the forms of Schedule 6.2.2(h);    (i) the Sellers shall provide to the Buyer a certificate, dated the Closing   Date and signed by a duly authorized officer of each Seller, that each of   the conditions set forth in items (a), (b), (e), (f) and (h) of Section 4.2.1    have been satisfied;   (j) the Sellers shall provide to the Buyer a certificate of the Secretary (or   equivalent officer) of each Seller certifying that attached thereto are   true and complete copies of all resolutions adopted by the board of di-   rectors of such Seller authorizing the execution, delivery and perfor-   mance of this Agreement, and the consummation of the Transaction,   and that all such resolutions are in full force and effect and are all the   resolutions adopted in connection with the Transaction;   (k) the Sellers shall provide to the Buyer a certificate of the Secretary (or   equivalent officer) of each Seller certifying the names and signatures of   the officers of such Seller authorized to sign this Agreement,  and the   other documents to be delivered hereunder;     





 







24 (43)      (l) if applicable, the Sellers shall provide to the Buyer an original copy of   the employment agreement between the Company and Harry Clayhills   dated August 3, 2015; and   (m) the Sellers shall provide to the Buyer evidence of the filing of applica-   tion for the deregistration of the Sadepo Oy Leasehold.   6.2.3 At or for Closing, the Parties shall deliver to each other, or take or cause to be   taken such action, as set forth in the following:   (a) FS Corporation and FS Europe shall sell and transfer to the Buyer, and   the Buyer shall purchase and assume, the Company Shares for that por-   tion of the Purchase Price as is allocated as set out in Schedule 3.1.3;   and then   (b) FS Corporation shall sell and transfer to the Company and the Compa-   ny shall purchase and assume the Inc. Shares for that portion of the   Purchase Price as is allocated as set out in Schedule 3.1.3; and then;    (c) FS Europe shall sell and transfer and the Company shall purchase and   assume the Transferred Ky Partnership Interests owned by it for that   portion of the Purchase Price as is allocated as set out in Schedule 3.1.3.   (d) each Party shall deliver to the other  all certificates and other docu-   ments reasonably required to be delivered by such Party to consum-   mate the Transaction; and   (e) the Parties shall sign and execute a closing memorandum, confirming   and evidencing the completion of the closing deliveries in the order set   out in this Agreement including in Section 6.2 and the completion of   the Closing.  For the avoidance of doubt, all Tax filings made in connec-   tion with the Transaction shall reflect such sequencing.    6.2.4 Subject to the sequencing provisions of Sections 2 and 6.2.3 above, all deliveries   to be made and actions to be taken at the Closing shall be deemed to have oc-   curred in the correct order as a part of a single transaction.   7 SELLERS’ REPRESENTATIONS AND WARRANTIES   7.1 General   7.1.1 The Buyer confirms that it has performed the Due Diligence Review prior to the   Signing.   7.1.2 The Buyer confirms that it has not relied on and has not been induced to enter   into this Agreement or proceed to Closing on the basis of any express or implied   warranties or other statements whatsoever other than the Sellers’ Warranties   set out in this Section 7, and that the Sellers shall have no liability towards the   Buyer based on any other warranty or information, express or implied, or any   other agreement or statute or on any other ground, except in the case of fraud   or criminally sanctioned acts.   7.1.3 Having regard to the above, the Sellers jointly and severally represent and war-   rant to the Buyer that the Sellers’ Warranties are on the Signing Date and will   be on the Closing Date true and correct (except those of the Sellers’ Warranties   that address matters only as of a particular date or only with respect to a specif-   ic period of time, which need only be true and correct as of such date or with re-   spect to such date or period).   7.1.4 The Sellers’ Warranties are qualified by the disclosures in the Disclosure   Schedule and the Phase I Environmental Report, so that the Sellers shall not be   deemed in breach of Sellers’ Warranties to the extent a risk, fact, matter or   event has been fairly disclosed in the Disclosure Schedule or the Phase I Envi-   ronmental Report with sufficient particularity to enable a reasonable buyer to     





 







25 (43)      assess the impact of the risk, fact, matter or event or to make a reasonable buy-   er sufficiently aware of such risk, fact, matter or event to present inquiries re-   lated thereto to the Sellers. Except as qualified by the disclosures in the Disclo-   sure Schedule (including items in the Data Room referenced therein) and the   Phase I Environmental Report, the Sellers’ Warranties are not qualified by any   information disclosed in the Data Room, any Due Diligence Review, any other   investigation conducted or by any knowledge acquired or could have been ac-   quired by the Buyer prior to the Signing Date.   7.2 Sellers’ Warranties   7.2.1 Organization and Existence of Sellers   7.2.1.1 Each Seller is a legal entity duly organized and validly existing under the laws of   the jurisdiction of its incorporation.   7.2.1.2 No order has been made and no resolution has been passed for or regarding the   initiation of any insolvency proceedings or the winding-up of the Sellers, and no   meeting has been convened and no petition has been presented for such pur-   pose. No administration order has been made in respect of the Sellers, and no   petition for such an order has been presented in respect of the Sellers. No trus-   tee, liquidator, receiver, administrator, or other similar person has been ap-   pointed in respect of the Sellers or any of their assets.   7.2.2 Power and Authorization of Sellers; Enforceable Agreement; Authority Approvals   7.2.2.1 The Sellers have the full legal and corporate power and authority to enter into   this Agreement and to consummate the Transaction.    7.2.2.2 This Agreement constitutes a valid and binding obligation of the Sellers en-   forceable against the Sellers in accordance with the terms of this Agreement.   The execution of this Agreement, the consummation of the Transaction, and the   fulfillment of the terms hereof will not result in a breach of any judgment or or-   der of any court, Governmental Authority or other body, any applicable law or   regulation, the articles of association or by-laws of the Sellers or the Group   Companies or any agreement binding on the Sellers, or any license or other   qualification necessary to carry out the business of the Sellers as presently con-   ducted.     7.2.2.3 No notice to, approval or consent of, or waiver from any Governmental Authori-   ty other than the Required Approvals is required to be made, obtained or ef-   fected by the Sellers in connection with the execution of this Agreement or the   consummation of the Transaction by the Sellers.   7.2.3 Title and Authority to Transfer the Shares   7.2.3.1 The Sellers own the Shares and have full power and authority to sell and trans-   fer the Shares in accordance with the terms of this Agreement.    7.2.3.2 The Shares are freely transferable to the Buyer or the Company (as applicable)   and are free and clear of any Encumbrances, and all transfer and other taxes   levied on or in relation to previous transfers of the Shares, if any, have been du-   ly paid.   7.2.3.3 Upon the Closing in accordance with the terms of this Agreement, the title to,   and any and all other rights of and interests in, all of the Shares will transfer to   the Buyer or the Company (as applicable), free and clear of any Encumbrances.     





 







26 (43)      7.2.4 Organization and Existence of the Company and the Subsidiaries   7.2.4.1 The Company is a legal entity duly organized and validly existing under the   laws of Finland as evidenced by the official, registered information set out in   Schedule 7.2.4.1.    7.2.4.2 Each of the Subsidiaries and Bronto Skylift, Inc. is a legal entity duly organized   and validly existing under the laws of its incorporation as evidenced by the offi-   cial registered information set out in Schedule 7.2.4.2.    7.2.4.3 No order has been made and no resolution has been passed for or regarding the   initiation of any insolvency proceedings or the winding-up of any of the Group   Companies, and no meeting has been convened and no petition has been pre-   sented for such purpose. No administration order has been made in respect of   any of the Group Companies, and no petition for such an order has been pre-   sented in respect of any of the Group Companies. No trustee, liquidator, receiv-   er, administrator, or other similar person has been appointed in respect of any   of the Group Companies or any of their assets.   7.2.5 Ownership in Subsidiaries and Other Participations   7.2.5.1 The Company owns, directly or indirectly, and free and clear of any Encum-   brances, the shares in the Subsidiaries set out in Schedule 7.2.5.1, and there are   no other direct or indirect subsidiaries of the Company other than as set forth   in Schedule 7.2.5.1.   7.2.5.2 The Group Companies do not hold, directly or indirectly, any shares or other   interests in any legal persons other than set out in Schedule 7.2.5.2.   7.2.6 Capitalization   7.2.6.1 The Shares and the shares in the Subsidiaries have been legally and validly is-   sued and are fully paid up. There are no warrants, options, convertibles, or oth-   er instruments or rights, or any agreements to which the Sellers or any of the   Group Companies are bound, providing for the issuance of any additional   shares in the Company, in the Subsidiaries or in Bronto Skylift, Inc. There are   no stock appreciation, phantom stock, profit participation or similar rights in   the Shares and the shares in the Subsidiaries and Bronto Skylift, Inc.  Except   for the Shares, there are no instruments or any agreements carrying the right to   vote on any matter with respect to the Company or Bronto Skylift, Inc. in exist-   ence.   7.2.7 Corporate Records and Documentation   7.2.7.1 The current Articles of Association, the trade register certificates and equivalent   documents of each of the Group Companies are attached hereto as Schedules   7.2.4.1 and 7.2.4.2.   7.2.7.2 Corporate records and documentation are prepared and kept by the Group   Companies in accordance with applicable laws in all material respects.  All of   the minute books and stock record books of the Group Companies have been   made available in the Data Room, and are complete and correct and have been   maintained in accordance with sound business practices. The minute books   contain accurate and complete records of all meetings and actions by written   consent of the stockholders and the board of directors, and no meeting or ac-   tion by written consent of any such stockholders or board of directors has been   held for which minutes have not been prepared and are not contained in such   minute books.     





 







27 (43)      7.2.8 Financial Information    7.2.8.1 The Statutory Accounts (i) have been prepared in accordance with applicable   Accounting Principles, and (ii) fairly present the financial condition and the re-   sults of the operations of the Company and each Group Company, as applicable,   as of the respective dates and for the respective periods covered in the Statutory   Accounts.    7.2.8.2 The Management Accounts attached hereto as Schedule 7.2.8.2 are complete   and not misleading. The Management Accounts have been prepared in accord-   ance with the Management Accounts Accounting Principles.   7.2.8.3 Except (i) as referenced in the Statutory Accounts or the Management Accounts,   (ii) for liabilities and obligations incurred in the Ordinary Course of Business   since the Accounts Date, or (iii) for liabilities and obligations which would not   be required to be disclosed in the Statutory Accounts or the Management Ac-   counts, the Group Companies have no material debt, obligations or liabilities,   contingent or otherwise.     7.2.9 Personal Property   7.2.9.1 The Company has title to and is in possession of all of the personal property   recorded in the Statutory Accounts and Management Accounts or acquired   since the Accounts Date (except for assets disposed of in the Ordinary Course of   Business or that are leased or licensed).   7.2.9.2 The personal property of the Group Companies comprise all the personal prop-   erty necessary to carry on the Business in the manner and to the extent con-   ducted immediately before the Signing or Closing as applicable.   7.2.10 Real Property and Business Premises   7.2.10.1 Schedule 7.2.10.1 contains a complete list of the real property owned, leased, or   otherwise used or held by the Group Companies.    7.2.10.2 The Group Companies have been and are duly registered as the owners of the   Real Property indicated as being owned by them in the title register as set out in   Schedule 7.2.10.1. The Group Companies have good and valid (and, in the case   of owned Real Property, good and marketable fee simple) title to, or a valid   leasehold interest in, all Real Property.   7.2.10.3 The Real Property comprises all real property necessary to carry on the Busi-   ness in the manner and to the extent conducted immediately before the Signing   or Closing as applicable.   7.2.10.4 The Group Companies are entitled, based on lease agreements, to use all busi-   ness premises in the manner used by them immediately before the Signing or   Closing as applicable.   7.2.11 Intellectual Property Rights   7.2.11.1 All Intellectual Property Rights required by the Group for the conduct of the   Business in the manner and to the extent conducted immediately before the   Signing or Closing as applicable are duly owned or validly licensed to the   Group.   7.2.11.2 There are no pending legal proceedings, disputes or other claims related to the   legality, validity, misuse, enforceability or ownership of any Intellectual Proper-   ty Rights, or any material agreement between a Group Company and a third   party with respect to the Intellectual Property Rights nor, to the Sellers’     





 







28 (43)      Knowledge, have any such legal proceedings, disputes or other claims been   threatened.    7.2.11.3 To the Sellers’ Knowledge, no Intellectual Property Rights are being infringed   or threatened by infringement. No Group Company has sent any notice of any   such infringement and, to the Sellers’ Knowledge, no circumstances or grounds   exist upon which any Group Company could present any such claim.   7.2.11.4 To the Sellers’ Knowledge, the conduct of the Business as currently and former-   ly conducted by the Group have not infringed, misappropriated or otherwise vi-   olated, and do not and will not infringe, misappropriate or otherwise violate the   Intellectual Property Rights or other rights of any third party.   7.2.12 Business Products   7.2.12.1 The Group has taken reasonable actions to avoid defects relating to the Busi-   ness Products developed, produced or provided by the Group. Schedule 7.2.12.1   contains an accurate summary of all information relating to any material per-   formance or functionality problem or issue with respect to any Business Prod-   uct which does, or may reasonably be expected to, materially affect the value,   functionality, or fitness for the intended purposes of the same.   7.2.12.2 All inventory of the Company reflected in the Closing Accounts consists of a   quality and quantity usable and salable in the Ordinary Course of Business, ex-   cept for obsolete, damaged, defective or slow-moving items that have been writ-   ten off or written down to fair market value or for which adequate reserves have   been established. The quantities of each item of inventory (whether raw materi-   als, work-in-process or finished goods) are not excessive, but are reasonable in   the present circumstances of the Company.   7.2.13 Information Technology   7.2.13.1 The Group owns or has sufficient licenses or other rights to use all Computer   Technology for the purpose of conducting the Group’s operations as conducted   immediately before the Signing or Closing as applicable. To the Sellers'   Knowledge, there are no material defects relating to the Computer Technology.   To the Sellers’ Knowledge, the use by the Group of the Computer Technology as   currently and formerly conducted, have not infringed, misappropriated or oth-   erwise violated, and do not and will not infringe, misappropriate or otherwise   violate the Intellectual Property Rights or rights of any third party.   7.2.14 Agreements   7.2.14.1 Each Material Agreement constitutes the legal, valid and binding obligations of   the applicable Group Company and, to the Sellers’ Knowledge, the other parties,   and is enforceable against them in accordance with its terms. There is no other   agreement that is material to the Business other than the Material Agreements.    7.2.14.2 No Group Company is in default under any Material Agreement and no Group   Company has received or given notice of any material breach of or termination   of any Material Agreement or is in material breach of any Material Agreement.   No counterparty of any Group Company is in material breach of any Material   Agreement or has indicated giving notice of termination of any Material   Agreement. To the Sellers’ Knowledge, there is no threat of any Group Compa-   ny or any counterparty breaching or defaulting in any material respect under   any Material Agreement.  No event or circumstance has occurred that would   constitute an event of default under any Material Agreement or result in a ter-   mination thereof or would cause or permit the acceleration or other changes of   any right or obligation or the loss of any benefit thereunder with or without no-   tice or lapse of time.     





 







29 (43)      7.2.14.3 The Group Companies have access, on reasonable terms, to all material goods   and services necessary for them to carry on their operations and the Business as   conducted immediately before the Signing or Closing as applicable and, to the   Sellers’ Knowledge, the Group Companies will continue to have such access on   reasonable terms after the Signing and after the Closing Date.   7.2.14.4 Except as disclosed in Schedule 7.2.14.4, no consent or approval by, notice to   any counterparty to any agreement to which any Group Company is a party is   required in connection with the execution of this Agreement or the consumma-   tion of the Transaction.    7.2.15 Related Party Transactions    7.2.15.1 Except for the Related Party Agreements, there are no contracts, undertakings   or transactions between any Group Company and any of the Sellers or their Af-   filiates.   7.2.15.2 All Related Party Agreements and any other agreements and transactions   among any Group Company and any of the Sellers or their Affiliates that were   made in the past 5 years have been entered into on arm’s-length terms.    7.2.16 Employment Matters and Pensions   7.2.16.1 A true, complete, and current list of all Key Employees of the Group Companies   and their overall remuneration (i.e. salaries, fringe benefits and any other em-   ployment benefits) is set out in Schedule 7.2.16.1.   7.2.16.2 No Key Employee has given notice or been given notice of termination regard-   ing his/her employment with the Group Companies nor, to the Sellers’   Knowledge, has any such person threatened or been threatened with such ac-   tion.   7.2.16.3 The Group Companies have in all material respects complied with the obliga-   tions under any applicable labor laws, applicable collective labor agreements   and other employment related agreements, including terminated agreements.   The Group Companies are not a party to, bound by, or negotiating any collec-   tive bargaining agreement or other contract with a union, works council or la-   bor organization. There has never been, nor has there to the Sellers’ Knowledge   been any threat of, any strike, slowdown, work stoppage, lockout, concerted re-   fusal to work overtime or other similar labor disruption or dispute affecting any   Group Company or any of its employees.   7.2.16.4 None of the Key Employees have received or are entitled to receive any financial   incentives, from any Group Company, which are dependent upon the comple-   tion of the Transaction.   7.2.16.5 Employee Benefit Plans   (a) A true and complete list of all Employee Benefit Plans relating to the   current or former employees of the Group Companies which are main-   tained, sponsored or contributed to by the Group Companies or in re-   spect of which any Group Company has any material liability, are pro-   vided in the Data Room.   (b) All required or discretionary (in accordance with historical practices)   payments, premiums, contributions, reimbursements or accruals have   been made or paid when due or properly accrued in the financial state-   ments of the Group Companies including the Statutory Accounts and   Management Accounts; and each Employee Benefit Plan is fully insured   and claims with respect to any participant or covered dependent under   such Employee Benefit Plan could not result in any uninsured liability;      





 







30 (43)      (c) There have been no violations of any applicable laws or regulations with   respect thereto (including in connection with sex, gender, age or other   discrimination), and the Group Companies (and the trustees of any   Employee Benefit Plan) have performed and complied with all of their   obligations with respect thereto and each of the Employee Benefit Plans   has, at all times, in form, operation and substance complied with its   terms; and there are no actions, suits, proceedings, hearings or investi-   gations pending (other than routine claims for benefits) and, to Sellers’   Knowledge, no such actions, suits, proceedings, hearings or investiga-   tions are threatened;    (d) No Employee Benefit Plan provides health, medical or life insurance   benefits with respect to any currents or former employees beyond their   retirement or other termination of service other than (i) coverage man-   dated by applicable law, or (ii) benefits the full cost of which is borne by   the current or former employee (or his or her beneficiary);   (e) No representations or communications, oral or written, with respect to   participation, eligibility for benefits, vesting, benefit accrual, or cover-   age under the Employee Benefit Plans have been made to any partici-   pant or beneficiary thereof other than those which are in accordance   with the terms and provisions of such Employee Benefit Plans. All rec-   ords and information necessary or appropriate in administering the   Employee Benefit Plans or legally required to be kept are maintained in   good order. All such records are true, accurate and complete.   7.2.17 Taxes   7.2.17.1 With respect to matters relating to the Taxes of the Group Companies:    (a) All Tax Returns required to be filed with the tax or other authorities on   or before the Closing Date by the Group Companies have been timely   filed. Such Tax Returns are true, complete and correct in all material   respects. The Seller has provided in the Data Room copies of all federal,   state, local and foreign income, franchise and similar Tax Returns, ex-   amination reports, and statements of deficiencies assessed against, or   agreed to by, the Group Companies for all Tax periods beginning with   fiscal year 2012.    (b) All Taxes due and owed by the Group Companies (whether or not   shown on any Tax Return) have been timely paid. No Group Company   is liable for any Taxes with respect to any periods ending prior to and   including the Accounts Date in excess of Taxes assessed or collected   based on the Tax Returns or the reserves recorded in the Statutory Ac-   counts and Management Accounts for unpaid Taxes. Each Group Com-   pany has withheld and paid in due time all Taxes required to have been   withheld and paid by such Group Company in connection with amounts   paid or owing to any employee, independent contractor, creditor, cus-   tomer, shareholder or other party, and complied in all material respects   with information reporting and backup withholding provisions of appli-   cable law.    (c) The Group Companies have not received from any Tax authority any   written notice of proposed deficiency assessment against the Group   Companies or notice of audit (except for a notice of audit received by   the Company on 5 October 2015 relating to fiscal years 2013 and 2014)   or claim in relation to any Taxes which has not since been satisfied by   payment, settled or been withdrawn.   (d) All deficiencies asserted, or assessments made, against any Group   Company as a result of any examinations by any taxing authority have   been fully paid.     





 







31 (43)      (e) No Group Company is a party to any Action by any taxing authority.   There are no pending or threatened Actions relating to a Group Com-   pany by any taxing authority.   (f) There are no Encumbrances for Taxes (other than for current Taxes not   yet due and payable) upon the assets of the Group Companies.   (g) No Group Company is a party to, or bound by, any Tax indemnity, Tax   sharing or Tax allocation agreement.   (h) No private letter rulings, technical advice memoranda or similar agree-   ment or rulings have been requested, entered into or issued by any tax-   ing authority with respect to any Group Company.   7.2.18 Environmental Matters; Health and Safety   7.2.18.1 The Group Companies have obtained and is, in compliance with, all licenses,   permits and authorizations required to be obtained by the Company under ap-   plicable Environmental Laws for the conduct of the Business (Environmental   Permits), and all Environmental Permits are in full force and effect and any   necessary renewal applications have been timely submitted. To the Sellers’   Knowledge, there have been no notice or written communication from any   Governmental Authority regarding suspension, revocation or any other materi-   al adverse change in the status or terms and conditions of any Environmental   Permit.   7.2.18.2 The Group Companies have no, and will not have after the Closing any, envi-   ronmental, health, or safety liabilities, including compensation for damage   caused to the environment or for the health of individuals related to the period   prior to the Closing Date. The Group Companies are, and have been, in compli-   ance with all Environmental Laws in all material respect, and, none of the   Sellers or Group Companies has received any notice or written communication   from any Governmental Authority or any other person alleging violation of, or   liability under, any applicable Environmental Law.  There is no litigation, arbi-   tration or similar proceeding pending or, to Sellers’ Knowledge, threatened   against any Group Company under any Environmental Law, and there is no   outstanding order from any Governmental Authority issued under any Envi-   ronmental Law against any Group Company.  No Group Company has assumed   or undertaken by contract or, to Sellers’ Knowledge, operation of law any liabil-   ity arising under any Environmental Law of any other person.   7.2.18.3 There has been no Environmental Release by any Group Company or any other   person at any facilities or real property currently or formerly owned, leased or   otherwise used by any Group Company or any other location. There has been   no exposure by any Group Company of any employee or any third party to any   Hazardous Materials under circumstances reasonably expected to give rise to   any material liability or obligation under any Environmental Law.   7.2.19 Insurance   7.2.19.1 The Group Companies’ insurance policies are equivalent to those generally used   in businesses similar in size and engaged in similar fields of operation to the   Business. There are no material claims by any Group Company pending under   any such insurance policies.  Such insurance policies are in full force and effect   and shall remain in full force and effect following the consummation of the   Transaction except for the policies under the Sellers’ insurance policy.   7.2.20 Litigation and Claims   7.2.20.1 No Group Company is involved as a party in any litigation or court proceeding or any other   material Action, nor is there, to the Sellers’ Knowledge, any threat of any such   litigation or court proceeding or any other material Action. There is no out-   standing judgment, ruling, arbitral award, or other decision (including provi-    





 







32 (43)      sional remedies and injunctions) imposing any material liabilities on any Group   Company or otherwise affecting them in any material respect.  There are no   outstanding Governmental Orders and no unsatisfied judgments, penalties or   awards against or affecting any Group Company or any of its properties or as-   sets.   7.2.20.2 There is no material (i) complaint or other claim which has been presented by   any third party (including authorities) against any Group Company, (ii) com-   plaint or other claim which has been presented by any of the Group Companies   against any third party (including authorities), nor (iii) to the Sellers’   Knowledge, any threat of any such complaint or other claim.   7.2.21 Compliance with Laws and Permits   7.2.21.1 Each Group Company has, in full force and effect, all material licenses, permits,   and other qualifications necessary to carry on its Business in the manner and to   the extent conducted immediately before the Signing or Closing as applicable.   Each Group Company complies in all material respects with all applicable laws   and regulations (including laws and regulations with respect to anti-corruption,   anti-money laundering, personal data privacy and economic sanctions) and all   licenses, permits, and other qualifications, if any, necessary to carry out its   Business.   7.2.21.2 To the Sellers’ Knowledge, no circumstances prevail that may result or are likely   to result in modification, supervision, revocation, or non-renewal of any exist-   ing license, permit, or other qualification. There is no pending action and, to   the Sellers’ Knowledge, no threatened action that seeks the revocation of any   such license, permit, or other qualification.   7.2.22 Ordinary Course of Business   7.2.22.1 No Group Company has taken any action that is outside the Ordinary Course of   Business since the Accounts Date. Since the Accounts Date, there has not been   any Material Adverse Effect.   7.2.23 No Brokers   7.2.23.1 No broker, finder or investment banker is entitled to any brokerage, finder's or   other fee or commission in connection with the Transaction or Agreement   based upon arrangements made by or on behalf of the Sellers.   7.2.24 True Disclosure   7.2.24.1 The information disclosed to the Buyer or its representatives, including all doc-   uments provided in the Data Room, are true, correct and complete in all mate-   rial respects on the date of its disclosure and no other information which ren-   ders any such information materially misleading exists.   7.2.25 No Other Warranties   7.2.25.1 It is specifically stated and agreed that the Sellers have not made, and the Buyer   has not relied on, any expressed or implied warranties regarding the Sellers, the   Shares, the Business or the Group Companies other than those contained in   Section 7.2.   7.2.25.2 Without limiting the generality of the foregoing, the Sellers make no warranty   to the Buyer with respect to, and assume no liability towards the Buyer based   on, any matters relating to the financial projection or forecast relating to the   Business or Group Companies (whether or not such projection or forecast has   been included in the Disclosure Material). With respect to any financial projec-    





 







33 (43)      tion or forecast that may have been delivered by or on behalf of the Sellers to   the Buyer or the Buyer’s advisors, the Buyer acknowledges that (a) there are   uncertainties inherent in attempting to make such financial projections and   forecasts, and (b) it has no claim against the Sellers with respect such financial   projections and forecasts.   8 COMPENSATION   8.1 Compensation by  the Indemnifying Party   8.1.1 Subject to the qualifications and limitations set out in this Section 8, (i) the   Sellers, on a joint and several basis, undertake to compensate the Buyer for any   Loss arising out of or relating to any breach by the Sellers of this Agreement in-   cluding breach of the Sellers’ Warranties, and (ii) the Buyer undertakes to com-   pensate the Sellers for any Loss arising out of or relating to any breach by the   Buyer of this Agreement including breach of the Buyer’s Warranties. For pur-   poses of this Agreement, the Indemnified Party means any party entitled to   compensation under this Section 8 and the Indemnifying Party means any   party providing such compensation under this Section 8. Any Loss for which   the Sellers are the Indemnifying Party liable to compensate the Buyer as the In-   demnified Party under this Section 8.1.1 and 8.1.2 shall be treated as a reduc-   tion of the Purchase Price. The remedy under this Section 8.1.1 and 8.1.2 shall   be exclusive, and it is specifically agreed that no other remedy under the Finn-   ish Sale of Goods Act (355/1987, as amended), or on any other ground (includ-   ing the right to terminate or rescind this Agreement) shall be available to an In-   demnified Party except in the case of fraud or criminally sanctioned acts com-   mitted by the other party.   8.1.2  In addition to the indemnification under Section 8.1.1, and notwithstanding   any other provision of this Agreement and any matters disclosed in the Disclo-   sure Material, the Sellers, on a joint and several basis, undertake to compensate   the Buyer for any Loss arising out of or relating to:   (a) Any Tax assessed upon any Group Company in connection with the   Company’s financial support in 2012 to Bronto Skylift Deutschland   GmbH, a German subsidiary of the Company;   (b) Any violation of or non-compliance with labor laws or regulations in   connection with the termination of the Company’s employees imple-   mented prior to the Closing; or   (c) Any violation of or non-compliance with laws and regulations with re-   spect to anti-corruption, anti-money laundering, and economic sanc-   tions arising from any act or omission of any Group Company, any of its   former or current employees or any other person who acted on behalf of   any Group Company  prior to the Closing; and any such act or omission   that leads to a proceeding alleging any such violation or non-   compliance, regardless of whether such proceeding results in conviction   or settlement with or without admission of wrongdoing.   (d) Notwithstanding any other provision of this Agreement, no limitation   on liability specified in Sections 8.2.2–8.2.4 shall be applicable to the   compensation available to the Buyer under this Section 8.1.2.       8.2 Limitation of  Indemnifying Party’s Liability   8.2.1 Limitations of Liability   8.2.1.1 The Indemnifying Party’s liability to compensate a Loss arising out of or relat-   ing to a breach by the Indemnified Party of any of its warranties in this Agree-   ment shall be limited as specified in Sections 8.2.2–8.2.4.     





 







34 (43)      8.2.2 Monetary limitations   8.2.2.1 The Indemnified Party shall not be entitled to any compensation:   (a) for an individual Loss, or a series of related Losses, the value of which is   less than EUR 50,000 (Deductible); and   (b) unless the aggregate amount of such recoverable individual Loss or se-   ries of related Losses (which, for the avoidance of doubt, includes the   full amounts, from the first euro of the Deductible, of each Loss or se-   ries of related Losses that equal or exceed the Deductible) amounts to at   least EUR 900,000 (the Basket), in which case the Buyer shall be   compensated for the full amount of such Losses exceeding the Basket.   8.2.2.2 The Indemnifying Party’s aggregate maximum liability based on this Agree-   ment shall not exceed 15% of the Purchase Price actually received by the Sellers.   8.2.3 Time limitations   8.2.3.1 No Claim for a breach by the Indemnified Party of any of its warranties in the   Agreement shall be made by an Indemnified Party against the Indemnifying   Party unless made in writing, accompanied by reasonable particulars specifying   the nature of the breach and the estimated amount of Losses, within 12 months   from the Closing Date, except for Claims based upon breach of:   (a) the Fundamental Warranties, which can be made indefinitely;   (b) the Sellers’ Warranties set out in Section 7.2.18 (Environmental Mat-   ters; Health and Safety), which can be made for a period of 4 years from   the Closing Date; and   (c) the Sellers’ Warranties set out in Section 7.2.17 (Taxes), which can be   made until 2 months following the expiration of the period available for   the relevant authorities to make any decisions regarding Taxes that can   generate a Loss.   For the avoidance of doubt, an Indemnified Party’s Claim that is made in ac-   cordance with this Section 8 within the aforementioned time limits shall sur-   vive until final resolution of such Claim; and the Indemnified Party’s estimated   amount of Losses in respect of its Claim may be based on contingent losses and   such amount may be finalized after the contingent losses cease to be contingent   even in the event such finalization occurs after the expiry of the aforementioned   time limits.   8.2.4 Other limitations    8.2.4.1 The Sellers shall not be liable to compensate a Loss if and to the extent such   Loss:   (a) relates to the Sellers’ Warranties and derives directly from a risk, fact,   matter, occurrence or event that was disclosed in the Disclosure Sched-   ule, or   (b) results from any change in accounting or tax policy or practice of the   Buyer or any Group Company introduced or having effect after the Clos-   ing Date.   8.2.4.2 The Indemnifying Party shall not be liable to compensate a Loss if and to the   extent such Loss:    (a) is actually recovered by the Indemnified Party under an insurance poli-   cy or from a third party;      





 







35 (43)      (b) is attributable to any legislation not in force on the Closing Date or any   change of legislation, requirement or administrative practice not in   force on the Closing Date;    (c) could have been avoided had the Indemnified Party made its reasonable   efforts to mitigate such Loss;   (d) is solely attributable to an act or omission carried out by the Indemni-   fied Party, or with the express written approval of the Indemnified Par-   ty; or   (e) is reflected by a specific and express provision or allowance for the mat-   ter giving rise to the Loss in the Statutory Accounts or Management Ac-   counts.   8.2.4.3 In connection with Section 8.2.4.2(a), the Indemnified Party may recover for   such Loss from the Indemnifying Party prior to the Indemnified Party actually   applying for or receiving any payments for a claim of such Loss from such in-   surance policy or third party; and shall refund to the Indemnifying Party an   amount equal to the payments actually received by the Indemnified Party for   such claim of such Loss from the relevant insurance policy or third party, less   all reasonable costs incurred by the Indemnified Party in collecting such pay-   ments, within 10 Business Days of receipt of such payments.    8.2.4.4 No limitations of liability apply in the event of fraud or willful misconduct.   8.2.4.5 For the avoidance of doubt, the Indemnified Party shall not be entitled to re-   cover from the Indemnifying Party under this Agreement more than once in re-   spect of the same Losses (whether based on the same or a different representa-   tion and warranty or indemnity).   8.3 Third Party Claims   8.3.1 If an Indemnified Party becomes aware of a Third Party Claim that could lead   to a breach of this Agreement, the Indemnified Party shall, in order to maintain   the right to bring a Claim against the Indemnifying Party:   (a) not later than 30 Business Days after the date the Indemnified Party   became aware of the Third Party Claim give notice thereof in writing to   the Indemnifying Party (provided, however, the failure to give such   written notice shall not relieve the Indemnifying Party of its indemnifi-   cation obligations, except and only to the extent that the Indemnifying   Party forfeits rights or defenses by reason of such failure);   (b) not make any admission of liability, settlement, or compromise with   any person in relation thereto without obtaining the prior written con-   sent of the  Indemnifying Party, which consent shall not be unreasona-   bly withheld or delayed;   (c) resist, defend, and appeal such Third Party Claim in the best interest of   the Indemnifying Party, at Indemnifying Party’s cost; and   (d) subject to the Indemnifying Party executing a confidentiality undertak-   ing as the Indemnified Party may reasonably require, give the Indemni-   fying Party and their advisors and representatives reasonable access to   all relevant information for the purposes of examining the Third Party   Claim.   8.3.2 If a Third Party Claim would arise that could lead to a breach of the Agreement,   any negotiation, dispute, or litigation relating thereto with any third party shall   be handled by the Indemnified Party or the Indemnifying Party, as the Indem-   nifying Party, in consultation with the Indemnified Party, may decide (except     





 







36 (43)      for a Third Party Claim (a) that involves criminal liability or any admission of   criminal wrongdoing, (b) that involves any customer or supplier of the Compa-   ny Group, or (c) that seeks any injunctive or other non-monetary relief that   would have a material effect on the business of any Group Company, in which   case the Buyer shall decide), in each case at Indemnifying Party’s cost. If the   Indemnifying Party assumes such defense, the Indemnifying Party shall be   deemed to have agreed to indemnify the Indemnified Party in accordance with   this Agreement in respect of the corresponding Third-Party Claim. The Party   handling the Third Party Claim shall keep the other Party continuously in-   formed of such negotiation, dispute or litigation, consult with the other Party   and give its external legal counsel or other external representative a possibility   to participate in such negotiation, dispute or litigation as an observer.   8.3.3 If the Indemnifying Party has made any payment to the Indemnified Party as a   settlement of any Third Party Claim and the Indemnified Party has the right to   recover from any third party any amount payable as a result of facts or circum-   stances forming the basis of such Third Party Claim, then the Indemnified Party   shall, or shall procure that, (i) upon request of the Indemnifying Party, said   right is assigned to the Indemnifying Party or, (ii) at the direction, cost, and risk   of the Indemnifying Party, pursue the said recovery and account to the Indem-   nifying Party for any funds or property recovered.   8.3.4 Regardless of whether the Indemnifying Party has assumed the defense of a   Third Party Claim, the Indemnified Party and the Indemnifying Party shall co-   operate in the defense of such Claim (including, for the avoidance of doubt, any   Claim falling within the purview of Section 8.1.2).  Such cooperation shall in-   clude the provision and access to the Indemnifying Party of documents, infor-   mation, books and records reasonably requested by the Indemnifying Party and   all reasonably requested materials related to such Claim; and making available   employees as may be reasonably requested by the Indemnifying Party and as   shall be reasonably required in connection with the investigation or defense of   such Claim and any proceeding resulting therefrom.      9 BUYER’S REPRESENTATIONS AND WARRANTIES   9.1 The Buyer represents and warrants to the Sellers that the Buyer’s Warranties   set out in this Section 9 are on the Signing Date and will be on the Closing Date   true and correct (except those of the Buyer’s Warranties that address matters   only as of a particular date or only with respect to a specific period of time,   which need only be true and correct as of such date or with respect to such date   or period).   9.2 Organization and Existence of Buyer   9.2.1 The Buyer is a legal entity duly organized and validly existing under the laws of   the jurisdiction of its incorporation.   9.3 Power and Authorization of Buyer; Enforceable Agreement   9.3.1 The Buyer has the full legal and corporate power to enter into this Agreement   and to consummate the Transaction.   9.3.2 This Agreement constitutes a valid and binding obligation of the Buyer enforce-   able against the Buyer in accordance with the terms of this Agreement. The exe-   cution of this Agreement, the consummation of the Transaction and the fulfill-   ment of the terms hereof will not result in a breach of any judgment or order of   any court, Governmental Authority or other body, any applicable law or regula-   tion, the articles of association of the Buyer, any agreement binding on the Buy-    





 







37 (43)      er, or any license or other qualification necessary to carry out the business of   the Buyer as presently conducted.   9.4 Solvency   9.4.1 The Buyer is not insolvent nor has it discontinued making payments in general   or filed a petition for its winding-up, bankruptcy, administration or solvent liq-   uidation and no other person has submitted such a petition or a petition for the   forced sale or seizure of any part of the assets of the Buyer.   9.5 Financing   9.5.1 The Buyer has prior to the Signing secured that necessary financing for the   Transaction will be readily available at Closing and that such financing is not   subject to or dependent upon any conditions.   9.6 Authority Approvals   9.6.1 No notice to, approval or consent of, or waiver from any Governmental Approv-   als other than the Required Approvals is required to be made, obtained or ef-   fected by the Buyer for the lawful and valid consummation of the Transaction   by the Buyer.   9.7 No Breach by the Sellers   9.7.1 As of the Signing Date, neither the Buyer nor any of its representatives or advi-   sors has actual knowledge of a fact, circumstance, event or action that causes   any Sellers’ Warranties not to be true and correct (it being understood that a   breach by the Buyer of its warranties in this Section 9.7.1 shall only limit its   right to make a Claim for compensation against the Sellers, but not (x) consti-   tute a Condition Precedent for the Sellers pursuant to Section 4.1 or 4.3 or (y)   entitle the Sellers to present a claim for compensation against the Buyer pursu-   ant to Section 8).   10 CERTAIN UNDERTAKINGS   10.1 Post-Closing Items   10.1.1 After the Closing, the Parties undertake to, and shall cause their respective Af-   filiates to, deliver, sign and execute all documents and instruments and take   such further actions as may be reasonably required or as reasonably requested   by the other Party, in each case for the purpose of giving full effect to the terms   of this Agreement.     10.1.2 Immediately after the Closing, the Buyer shall appoint new directors and, if   necessary, auditors of the Company and Bronto Skylift, Inc. as its shareholder.    The Buyer shall submit a notice to the Finnish trade register and the equivalent   US register regarding the resignations set out in Section 6.2.2(h) and the ap-   pointments of new such directors and auditors, and deliver evidence of such   submission to the Sellers.   10.1.3 The Parties undertake that any notifications and other actions with respect to   the Governmental Authorities required after the Closing, including trade regis-   ter notifications, shall be made without undue delay and in any case within the   specified time required for each act.   10.1.4 The Buyer agrees not to make a Section 338 (g) election under the U.S.A. Inter-   nal Revenue Code. The Buyer further agrees not to perform any transactions   outside the Ordinary Course of Business during 2016 which could adversely   impact the Sellers’ Section 1248 (under the U.S.A. Internal Revenue Code) cal-    





 







38 (43)      culations, including sales of assets, distributions of dividend and reorganiza-   tions of any of the Group Companies.   10.1.5 After the Closing, in due course and as applicable, the Buyer shall cause the   Company to pay the Sellers the tax refund as set forth in Section 3.4.1 and the   Latvia Compensation payable to the Seller (if any) as set forth in Section 3.4.3,   and the Sellers shall make payments to the Company in amounts equal to the   tax payments as set forth in Section 3.4.2 and the Latvia Compensation payable   to the Buyer (if any) as set forth in Section 3.4.3.   10.2 Resigning Directors   10.2.1 At the next annual general meeting of the Company, the Buyer undertakes to   procure that those managing directors and members of the board of directors of   the Group Companies who have resigned or been replaced in connection with   the Transaction are granted discharge from liability for their management and   administration until the Closing Date (or the earlier date of their resignation or   replacement) to the extent that the liability does not arise from their fraud,   gross negligence or willful misconduct, unless the auditor of the Company in its   report for the relevant period recommends against such discharge.   10.3 Access to Books and Records   10.3.1 The Buyer shall, and shall procure that the Group Companies shall, retain for a   period of 10 years from the Closing Date, the books, records and documents of   the Group Companies to the extent they relate to the period prior to the Closing   Date, and shall procure that the Group Companies shall, allow the Sellers, or   any of their Affiliates if so designated by the Sellers, reasonable access to such   books, records and documents, including the right to take copies at the Sellers’   expense, to comply with any relevant laws or in connection with the prepara-   tion and agreement of any accounting, tax or other records. In addition, the   Buyer shall inform the Sellers of any tax filings relating to the financial period   of each Group Company during which the Closing occurs and provide such fil-   ings for the Sellers’ review.   10.4 Non-Competition   10.4.1 Each Seller undertakes that for a period of 3 years from the Closing Date, it   shall not without the prior written consent of the Buyer engage in any business   competing with the Business as conducted on the Closing Date in any jurisdic-   tion where the Business is conducted on the Closing Date. Notwithstanding the   above, the Parties acknowledge and agree that investments not exceeding five   per cent (5%) of any class of security traded on the stock exchange will not be   considered to constitute a breach of this Section 10.4.   10.5 Non-Solicitation   10.5.1 Each Seller undertakes that for a period of 3 years from the Closing Date, it   shall not solicit for employment from the Group any of the Key Employees.   However, the Sellers shall not be precluded from considering and accepting an   application from a Key Employee in response to a recruitment advertisement   published generally, an unsolicited approach by such person or as a result of a   non-targeted recruitment campaign.   10.6 Confidentiality and Announcements   10.6.1 The Parties shall keep, and shall cause their respective Affiliates and advisors to   keep, the contents of this Agreement and the Transaction as well as any negoti-   ations and possible proceedings in relation hereto confidential indefinitely and   no Party shall make any press release, public announcement or communication     





 







39 (43)      with any news media concerning this Agreement or the Transaction without   prior written consent of the other Party, except as such announcement may be   required by any laws, rulings of competent courts or authorities, or any appli-   cable stock exchange rules, in which case, the Party who is required to make   such announcement shall provide the other Party with reasonable time under   the circumstances to comment on such announcement in advance thereof.   10.6.2 The Sellers undertake, on behalf of themselves and of their Affiliates, not to   disclose or use for any other purpose than the purposes of this Agreement any   Confidential Information regarding (i) the Buyer or any of its Affiliates, which   the Sellers have received or obtained in connection with the Transaction, or (ii),   after the Closing, the Business or the Group, which the Sellers have received or   obtained prior to, or in connection with the Transaction. The Buyer undertakes,   on behalf of itself and of its Affiliates, not to disclose or use for any other pur-   pose than the purposes of this Agreement any Confidential Information regard-   ing the Sellers or any of their Affiliates or, until and including the Closing, any   Confidential Information regarding the Business or the Group, which the Buyer   has received or obtained in connection with the Transaction. Notwithstanding   the above, the Parties are not restricted from disclosing Confidential Infor-   mation to the extent such Confidential Information (i) is in or enters into the   public domain other than by reason of a breach of this Section 10.6 by the dis-   closing Party, (ii) is obtained from a third party which is lawfully entitled to dis-   close such information without any restriction on its disclosure, (iii) was right-   fully known by the disclosing Party before receipt from the other Party or (iv) is   required to be disclosed by law, ruling of a competent court or authorities, or   applicable stock exchange rules.    11 TERMINATION   11.1 Termination   11.1.1 This Agreement may be terminated at any time prior to the Closing:   (a) by the mutual written consent of the Parties;   (b) by the Buyer by written notice to the Sellers if: (x) the Buyer is not then   in material breach of any provision of this Agreement and there has   been a breach, inaccuracy in or failure to perform any representation,   warranty, covenant or agreement made by the Sellers pursuant to this   Agreement that would give rise to the failure of any of the conditions   specified in Section 4.2 and such breach, inaccuracy or failure has not   been cured by the Sellers within 1o Business Days of Sellers’ receipt of   written notice of such breach from the Buyer; or (y) any of the condi-   tions set forth in Section 4.1 or 4.2 shall not have been fulfilled by the   Long-Stop Date, unless such failure shall be due to the failure of the   Buyer to perform or comply with any of the covenants, agreements or   conditions hereof to be performed or complied with by it prior to the   Closing;   (c) by the Sellers, acting jointly, by written notice to the Buyer if: (x) the   Sellers are not then in material breach of any provision of this Agree-   ment and there has been a breach, inaccuracy in or failure to perform   any representation, warranty, covenant or agreement made by the Buy-   er pursuant to this Agreement that would give rise to the failure of any   of the conditions specified in Section 4.3 and such breach, inaccuracy or   failure has not been cured by the Buyer within 10 Business Days of the   Buyer's receipt of written notice of such breach from the Sellers; or (y)   any of the conditions set forth in Section 4.1 or  4.3 shall not have been   fulfilled by the Long-Stop Date, unless such failure shall be due to the   failure of the Sellers to perform or comply with any of the covenants,   agreements or conditions hereof to be performed or complied with by it   prior to the Closing.     





 







40 (43)      11.2 Effect of Termination   11.2.1 If this Agreement is terminated pursuant to this Section 11, all rights and obli-   gations of the Parties under this Agreement, other than pursuant to Sections   10.6 (Confidentiality and Announcements), this Section 11.2, 12 (Miscellane-   ous), 13 (Governing Law) and 14 (Disputes), shall terminate with effect from   the date of termination, provided that such termination shall be without preju-   dice to the remedies (including without limitation the right to request specific   performance or compensation for loss) available to the Parties hereunder or   under law.   11.3 Termination after Closing   11.3.1 Notwithstanding the provisions of the preceding Sections, after the completion of the Closing,   no Party shall have the right to terminate this Agreement, and this Agreement shall not termi-   nate for any reason whatsoever, unless the Parties otherwise agree in writing.   12 MISCELLANEOUS   12.1 Notices   12.1.1 Notices required under this Agreement shall be deemed sufficient if made in English, in writ-   ing and delivered personally (with an initialed dated receipt), by registered mail, by courier   through a reputable international courier firm, or by email to the recipient at the post address   or email address below or at such other address or email address that has been notified in ac-   cordance with this Section 12.1:   if to the Sellers Name: Federal Signal Corporation   Address: 1415 West 22nd Street, Suite 1100   Oak Brook, Illinois, 60523-2004, USA   Email: ddupre@federalsignal.com   Attention to: General Counsel       with a copy (which   copy shall not con-   stitute a notice) to:          Name: Castrén & Snellman Attorneys Ltd   Address: PO Box 233, FI-00131 Helsinki, Finland   Email: jan.orndahl@castren.fi   Attention to: Jan Örndahl       if to the Buyer Name: Morita Holdings Corporation    Address: 3-25-31 Nishishinbashi, Minato-ku, Tokyo,   105-0003, Japan   Email: mitsuru.ito@morita119.com   Attention to: Mitsuru Ito       with a copy (which   copy shall not con-   stitute a notice) to:   Name: Mori Hamada & Matsumoto    Address: Marunouchi Park Building, 2-6-1 Marunouchi,   Chiyoda-ku, Tokyo 100-8222, Japan   Email: hajime.tanahashi@mhmjapan.com    Attention to: Hajime Tanahashi      12.1.2 Any such notice shall be deemed to have been delivered:   (a) when delivered, if delivered personally;    (b) on the fifth (5th) Business Day after having been sent by registered mail   or by courier; or   (c) on the day of transmission, if sent by e-mail, provided that no delivery   failure report have been received.     





 







41 (43)      12.1.3 The Parties shall give notice of any changes in their contact information without   undue delay and in accordance with this Section 12.1.    12.2 Entire Agreement   12.2.1 With respect to the matters covered in this Agreement, this Agreement consti-   tutes the entire understanding and agreement between the Parties relating to   the subject matters covered and supersedes all prior negotiations, understand-   ings, and agreements, whether or not in writing, pertaining to such subjects.   Any previous agreements, both written and oral, between the Parties are null   and void, except that confidentiality agreements between the Parties and/or be-   tween the Buyer and the Company shall remain unaffected by this Agreement if   the Closing does not occur.   12.3 Amendments   12.3.1 Any amendment to this Agreement shall be in writing and shall have no effect   unless signed by duly authorized representatives of all Parties.   12.4 Assignment   12.4.1 This Agreement or the rights or obligations under this Agreement shall not be   assignable by any Party.   12.5 Expenses   12.5.1 Unless otherwise provided herein, each Party shall bear its own costs and ex-   penses incurred by them in connection with the negotiation, preparation, exe-   cution and implementation of this Agreement and any other documents to be   executed pursuant hereto or in connection herewith.    12.6 No Waiver   12.6.1 No waiver by any Party of any right or remedy under this Agreement shall be   effective unless given in writing and executed by or on behalf of the duly au-   thorized representatives of such Party. Any failure or delay by a Party in exer-   cising any right or remedy will not constitute a waiver. No waiver of any term or   condition of this Agreement or of any right or remedy arising in connection   therewith shall constitute a waiver of any successive breach of such provision or   waiver by such Party of any breach of any other provision hereof.    12.7 Severability   12.7.1 If any part of this Agreement is determined to be invalid or unenforceable, such   determination shall not invalidate any other provision of this Agreement. The   Parties shall attempt, through negotiations in good faith, to replace any such   invalid or unenforceable provision of the Agreement with a comparable provi-   sion that is enforceable and valid. The failure of the Parties to reach an agree-   ment on such a replacement provision shall not affect the validity of the re-   maining provisions of this Agreement.   12.8 Interpretation; Order of Priority   12.8.1 The Parties and their respective advisers have participated jointly in the negoti-   ation and drafting of this Agreement. If any ambiguity or question on intent or   interpretation arises, this Agreement shall be construed as if drafted jointly by   the Parties, and no presumption or burden of proof shall arise favoring or dis-   favoring either Party by virtue of the authorship of any of the provisions hereof.     





 







42 (43)      12.8.2 The headings and the table of contents of this Agreement are for convenience of   reference only and do not in any way limit or affect the meaning or interpreta-   tion of the provisions of this Agreement.   12.8.3 In case of a discrepancy between this Agreement and its Schedules, this Agree-   ment shall prevail.   12.8.4 For purposes of this Agreement, (a) the words "include," "includes" and "in-   cluding" shall be deemed to be followed by the words "without limitation"; (b)   the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "here-   to" and "hereunder" refer to this Agreement as a whole; and (d) the singular in-   cludes the plural and vice versa unless the context otherwise requires.   12.8.5 Unless the context otherwise requires, references herein (a) to an agreement,   instrument or other document means such agreement, instrument or other   document as amended, supplemented and modified from time to time to the   extent permitted by the provisions thereof and (b) to a statute means such stat-   ute as amended from time to time and includes any successor legislation there-   to and any regulations promulgated thereunder.    13 GOVERNING LAW   13.1.1 This Agreement, including the arbitration clause, and any dispute, claim or   controversy arising out of or relating to this Agreement, or the breach, termina-   tion or validity thereof, are governed by the laws of Finland without regard to   its principles and rules on conflict of laws. It is expressly agreed that the Finn-   ish Sale of Goods Act (355/1987) and the United Nations Convention on Con-   tracts for the International Sale of Goods shall not apply to this Agreement.   14 DISPUTES   14.1.1 Any dispute, controversy or claim arising out of or relating to this Agreement,   or the breach, termination or validity thereof, shall be finally settled by arbitra-   tion in accordance with the Arbitration Rules of the Arbitration Institute of the   Finland Chamber of Commerce. The seat of arbitration shall be Helsinki, Fin-   land. The language of the proceedings shall be English. There shall be three ar-   bitrators on the arbitration tribunal, with one arbitrator selected by the Buyer,   one arbitrator selected by the Sellers, and a third arbitrator selected by the oth-   er two arbitrators.   14.1.2 If a Party does not comply with the Independent Auditor's decision, the other   Parties may seek an arbitral award against the non-complying party in accord-   ance with the Rules for Expedited Arbitration of the Arbitration Institute of the   Finland Chamber of Commerce. If a dispute falling under Section 14.1.1 exists   at the same time, any such dispute shall be settled together with the dispute   falling under Section 14.1.1 in accordance with said Section 14.1.1.   15 COUNTERPARTS OF AGREEMENT   15.1.1 This Agreement has been executed in 2 identical counterparts, 1 for the Sellers   and 1 for the Buyer.   This Agreement may be executed in any number of counterparts and all of the   counterparts taken together shall be deemed to constitute one and the same in-   strument. Delivery of an executed counterpart of a signature page to this   Agreement by fax or email shall be effective as delivery of a manually executed   counterpart of this Agreement.   [Signature page to follow]      





 







43 (43)         This Agreement has been duly executed by the Parties on the Signing Date.   FEDERAL SIGNAL CORPORATION      _/s/ Jennifer L. Sherman_____       Name: Jennifer L. Sherman   Title: Senior Vice President and              Chief Operating Officer             FEDERAL SIGNAL OF EUROPE B.V.      _/s/ John A. DeLeonardis_____       Name: John A. DeLeonardis   Title: Managing Director             MORITA HOLDINGS CORPORATION      _/s/ Masahiro Nakajima______          Name: Masahiro Nakajima   Title: Chairman & CEO